Karnataka High Court
Santhosh Thazhathu vs The Congregation Of The Sons Of The ... on 27 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 8633 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.8633 OF 2022 (CPC)
BETWEEN:
SANTHOSH THAZHATHU
S/O LATE DR. MATHEW THAZHATHU
AGED ABOUT 51 YEARS
VILLA NO.9, CHAITHYANYA RAKUEN
SWAMI VIVEKANANDA ROAD
NEAR HOPE FARM JUCTION
WHITEFIELD
BENGALURU-560066
...APPELLANT
(BY SRI D R RAVISHANKAR, SR. COUNSEL FOR
Digitally signed SRI. SUDHINDRA MURTHY V, ADVOCATE)
by SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE CONGREGATION OF THE SONS OF THE
IMMACULATE HEART OF MARY
(CLARETIAN FATHERS)
FORMERLY AT SHANTHI NIVAS STUDY HOUSE
NO.1, 10-A MAIN, 4TH CROSS
MALLESWARAM
BENGALURU-560055
NOW AT CLARET BHAVAN
CARMELARAM POST
BENGALURU-560035
REPRESENTED BY ITS AUTHOIRSED SIGNATORY
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MFA No. 8633 of 2022
FR. VINSENT KIRAN
AGED ABOUT 35 YEARS
S/O RAYAPPA
R/A CLARET BHAVAN, CARAMELARAM POST
BENGALURU-560035
2. CLARET BHAVAN-NOVITIATE HOUSE OF
CLARETIAN CONGREGATION
HAVING ITS OFFICE AT CLARET BHAVAN
CARMELARAM POST
BENGALURU-560035
REPRESENTED BY ITS AUTHOIRSED SIGNATORY
FR. VINSENT KIRAN
AGED ABOUT 35 YEARS
S/O RAYAPPA
R/A CLARET BHAVAN, CARAMELARAM POST
BENGALURU-560035
3. INDIAN PROVINCE OF CLARETIAN
CONGREGATION
HAVING ITS ADMINISTRATIVE OFFICE AT THE
CLARETIAN PROVINCIAL HOUSE 28/12,
18TH CROSS ROAD, 14TH MAIN ROAD
MALLESWARAM
BANGALORE-560055
REP BY ITS AUTHORISED SIGNATORY
FR VINSENT KIRAN
AGED ABOUT 35 YEARS
S/ SRI RAYAPPA
4. FATHER T KURIAKOSE
S/O V T KURIAKOSE
AGED ABOUT 77 YEARS
CLARETIAN PROVINCIAL HOUSE
KARUKUTTY PO, ANGAMALY
ERNAKULAM DIST
KERALA-683576
CURRENTLY R/A THEKILAKKATTIL (HOUSE)
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MFA No. 8633 of 2022
MARIA SADAN, CLARET BHAVAN
KURAVILANGAD, KOTTAYAM (DIST)
KERALA-686633
5. SENIOR SUB REGISTRAR
SHIVAJINAGAR (BANASAWADI)
BENGALURU-560043
...RESPONDENTS
(BY SRI A RAVISHANKAR, ADVOCATE FOR R1 TO R4;
SRI VENKATASATYANARAYANA, HCGP FOR R5)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION
151 OF CPC, AGAINST THE ORDER DATED 21.09.2022
PASSED ON I.A.NO. II IN OS.NO.1834/2022 ON THE FILE
OF THE III ADDITIONAL SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the order dated
21.09.2022 passed on I.A.No.II in O.S.No.1834/2022 by
the III Additional Senior Civil Judge, Bengaluru Rural
District, Bengaluru.
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2. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondents.
3. The factual matrix of the case of the plaintiffs
before the Trial Court that the suit schedule property
which is described in the schedule is not intended to sell
the property in favour of the defendants and the
defendants, with an intention to knock off the valuable
property, got it phoded other than the property of the
plaintiffs and thereby played fraud on the plaintiffs and
obtained the sale deed. It is also the contention of the
plaintiffs before the Trial Court that Sy.No.49 was the
original survey number and with an intention to play fraud,
the defendants got phoded the property and in terms of
the phoding, new number is assigned as Sy.No.114 and
based on the said rephoded number, the defendants got
the sale deed. It is also contended in the plaint that the
plaintiffs at no point of time had any intention to sell the
property belonging to the daughters of Divine Providence
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whose property is situated on the eastern and northern
side of their 'B' schedule property. They have no right
over the property belonging to daughters of Divine
Providence. If their property is to an extent of 0.9½
guntas and 19¼ guntas, in all 28¾ guntas, which is in
actual possession by them is included by the first
defendant in the schedule to the sale deed, hence, it is a
clear case of fraud played by the first defendant on the
plaintiffs as well as the daughters of Divine Providence. If
the said daughters of Divine Providence were to initiate
civil and criminal proceedings on the basis of the sale deed
executed by the plaintiffs in favour of the first defendant,
it would cause the plaintiffs serious injury and humiliation.
Hence, it is a fit case to rescind the document. In
paragraph 37 of the plaint it is stated that in the interest
of plaintiffs, first defendant and third parties, it is
necessary to cancel the sale deed dated 04.12.2019. The
plaintiffs are ready and willing to repay the entire sale
consideration mentioned in the sale deed, which the
plaintiffs have received from the first defendant on such
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cancellation of the contract i.e., the cancellation of sale
deed dated 04.12.2019.
4. It is also contended in the plaint that by
producing the document of paper publication given by the
defendants for sale of the property and also notice has
been exchanged between the parties hence, filed a suit
praying for directing the rescission of the contract of
sale/sale deed dated 04.12.2019 which is duly registered
as document No.15351 of 2019-20 at the office of the
Senior Sub-Registrar, Shivajinagar and also alternative
relief to direct the cancellation of the sale deed dated
04.12.2019 and other relief's and inter alia sought for the
relief of temporary injunction by filing an application under
Order 39 Rules 1 and 2 of CPC reiterating the facts of the
plaint.
5. The defendants appeared and filed the written
statement contending that the very suit itself is not
maintainable. It is also contended that prior to the sale
deed, there were two sale agreements and based on the
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said sale agreements, the plaintiffs have received the sale
consideration and also executed the sale deed on
04.12.2019 and immediately after the execution of the
sale deed, they have come up with a plea that a complaint
was lodged before the Commissioner on 09.12.2019 and
report is obtained and based on the report, an order has
been passed by the Commissioner. It is also contended
that when the plaintiffs intend to sell the property, they
have received the entire sale consideration and major sale
consideration was received when the two sale agreements
were executed. It is also contended that an allegation is
that revenue officials conspired and illegally phoded the
land without following the procedure and the said
contention is erroneous. On execution of the sale deed in
favour of the appellant/defendant No.1, he became an
absolute owner of the suit property, thus, the question of
instituting the suit for rescission of the sale deed as well as
seeking any alternative relief does not arise. Hence,
prayed for rejection of the application.
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6. The Trial Court having considered the pleadings
of the parties, formulated the points which read as follows:
1. Whether plaintiffs have made out a prima
facie case?
2. In whose favour balance of inconvenience
will be lies?
3. To whom irreparable loss will be caused?
7. The Trial Court after considering the pleadings
of the parties as well as on perusal of the material
available on record, granted the relief of temporary
injunction in favour of the plaintiffs restraining defendant
No.1 from alienating the application schedule property till
disposal of the suit. Being aggrieved the said order, the
present appeal is filed.
8. The learned counsel appearing for the appellant
would vehemently contend that there is no dispute with
regard to the two agreements of sale i.e., one is to the
extent of 1 acre 20 guntas and another one is 2 acres 20
guntas and in all 4 acres. The counsel also brought to
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notice of this Court that clause No.5 of the agreement is
very clear with regard to the phodi work is concerned and
phodi was done on 16.09.2019. Apart from that the
counsel also produced the document of declaration dated
30.09.2019 and said declaration has been signed by all of
them on 30.09.2019. The counsel also brought to notice
of this Court that the sale deed was executed on
04.12.2019 and also received the entire sale consideration
of Rs.15,85,75,000/-. Now, they cannot question the very
same only on the ground that false implication is made
with regard to the property stating that the property of the
plaintiffs included other than their property. The plaintiffs
cannot seek for the relief of rescission since the relief
sought before the Trial Court is not maintainable.
9. The counsel also would vehemently contend
that the plaintiffs can seek for rectification of the sale deed
and not for cancellation of entire sale deed. The counsel
would submit that the suit itself is not maintainable. The
counsel also brought to notice of this Court to the
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averments made in paragraphs 9, 10 and 13 of the plaint
and also the counsel would vehemently contend that the
essential pleading of fraud is missing in the plaint itself
and when the essential pleading of fraud is missing in the
plaint, they cannot seek for the relief of cancellation of
sale deed along with the other reliefs. When there is no
case on main, they cannot seek for an order of interim
relief. The counsel also would vehemently contend that
power of attorney was executed only in respect of 2 acres
20 guntas and not in respect of 4 acres. The counsel also
would vehemently contend that the executors of power of
attorney are not the kathedars. The counsel would
vehemently contend that already their grievance has been
considered in the office of the Commissioner of the
particular department as well as the said order has been
challenged before the Single Judge of this Court and the
Single Judge also concurred with the findings of the
Commissioner. Hence, writ appeal was also filed before the
Division Bench of this Court and the same is pending for
consideration. When their grievance has been made
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before the concerned authority as well as before the Single
Judge and Division Bench, they are not entitled for the
relief of temporary injunction and Section 41(h) of the
Specific Relief Act comes to the rescue of the appellant.
Hence, the plaintiffs cannot maintain a suit as well as they
cannot seek for an order of temporary injunction.
10. The counsel for the appellant in support of his
arguments, relied upon the judgment of the Apex Court
reported in (1964) 5 SCR 836 equivalent to AIR 1965
SALE CONSIDERATION 241 in the case of C
BEEPATHUMMA AND OTHERS vs VELASARI
SHANKARANARAYANA KADAMBOLITHAYA AND
OTHERS and brought to notice of this Court paragraph 17
wherein the Apex Court discussed with regard to the
doctrine of election which has been applied and may be
stated in the classic words of Maitland that he who accepts
a benefit under a deed or will or other instrument must
adopt the whole contents of that instrument, must
conform to all its provisions and renounce all rights that
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are inconsistent with it. The counsel also brought to
notice of this Court paragraph 18 where the said fact was
discussed and the counsel by relying upon this judgment
would vehemently contend that when the entire sale
consideration has been received, he will undertakes that
he will not alienate the disputed area of 28½ guntas and
in respect of remaining area is concerned, he may be
permitted to sell the property.
11. The counsel also relies upon the judgment
reported in 2023 LIVELAW (SALE CONSIDERATION)
666 in the case of RAMATHAL AND OTHERS vs K
RAJAMANI (DEAD) THROUGH LRS AND ANTOHER and
brought to notice of this Court only with regard to Non est
factum wherein it is held that a plea of non est factum is a
latin maxim which literally means 'it is not the deed'. It is
a defence available in Contract Law allowing a person to
escape the effect of a document which she/he may have
executed/signed - Requirements for a successful plea of
non est factum - (1) The person pleading non est facutm
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must belong to "class of persons, who through no fault of
their own, are unable to have any understanding of the
purpose of the particular document because of blindness,
illiteracy or some other disability". The disability must be
one requiring the reliance on others for advice as to what
they are signing (2) The "signatory must have made a
fundamental mistake as to the nature of the contents of
the document being signed", including its practical effects
(3) The document must have been radically different from
one intended to be signed. The counsel referring this
judgment would vehemently contend that the very case of
the plaintiffs is that by playing fraud, the defendants have
obtained the sale deed. It is not disputed fact that the
defendants entered into an agreement of sale as we; as
executing of the sale deed.
12. The counsel also relied upon the judgment of
the Apex Court reported in CIVIL APPEAL
No.1575/2019 in the case of TANU RAM BORA vs
PROMOD CH. DAS (D) THROUGH LRS. & OTHERS and
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brought to notice of this Court to the discussions made in
paragraph 7.4 with regard to Section 43 of the T.P. Act
and also paragraph 7.5 with regard to the intention and
objects behind Section 43 of the T.P. Act with regard to
the estopple is concerned.
13. The learned counsel appearing for the
respondents in his argument would vehemently contend
that the very pleading in the plaint is very clear and the
pleading of fraud has been set out in the plaint itself and
detail plaint is prepared and filed before the Trial Court
and same is in consonance with the Section 27 of the
Specific Relief Act. The counsel submits that no dispute
with regard to the execution of two sale agreements to
different dimensions and also no dispute with regard to the
execution of the sale deed dated 04.12.2019. The counsel
also brought to notice of this Court that earlier power of
attorney was executed on 31.05.2016 and the counsel also
contended that phodi work was got it done by the
appellant herein on 16.09.2019. The very suit of the
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plaintiffs before the Trial Court is that by playing fraud, got
included the property other than the property of the
plaintiffs and when they come to know about the fraud
played in obtaining the sale deed, immediately on
09.12.2019, a complaint was given about the phodi and
the concerned department also verified the same and
obtained the report and consequent upon the report, the
Tahsildar who played fraud in getting the phodi in
connection with the including of other property was
suspended from the service and criminal case is also
registered against him.
14. The counsel brought to notice of this Court that
to Annexure-R3 which is the document of JDLR report;
Annexure-R4 is the complaint given by the Assistant
Commissioner; Annexure-R5 is the FIR registered against
the Tahsildar and Annexure-R5 is the Government order
wherein it is specifically mentioned with regard to not to
register property particularly in Sy.No.49. The counsel
also would vehemently contend that with an intention to
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commit fraud on the plaintiffs, while phoding the property,
the said Sy.No.49 is shown as Sy.No.114 since there was
a government order for not to register the sale deed in
respect of Sy.No.49. The counsel also submits that the
said order was challenged before the Single Judge of this
Court and the Single Judge also taken note of the fact that
there was a fraud in getting phodi work and passed the
order and the said order has been challenged before the
Division Bench of this Court and the Division Bench also in
terms of Annexure-R9 - interim order, given permission to
conduct fresh phodi. The counsel also would vehemently
contend that the relief is also sought for not to alienate the
application schedule property and the same will not come
in the way of the appellant herein. The counsel would
vehemently contend that Anneuxre-R15 is the document
of public notice for selling of the property and the same
has been considered by the Trial Court. In the plaint,
specific pleading was made with regard to the fraud is
concerned and if the property is sold, the same would lead
to multiplicity of proceedings. The counsel also would
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vehemently contend that when the phodi is challenged, it
requires enquiry and the same is also taken note of by the
Trial Court and comes to the conclusion that with regard to
the allegation of fraud, an enquiry is necessary and there
is also a bar for registration of the property in Sy.No.49
and also in the written statement, admitted the execution
of power of attorney.
15. In reply to the arguments of the learned
counsel for the respondents, the learned counsel for the
appellant would vehemently contend that even admitting
that there is a mistake while getting the phodi of the
property i.e., inclusion of 28½ guntas, they are ready to
give an undertaking that they are not going to sell the
portion of 28½ guntas and also stated that with regard to
the remaining area is concerned, interim order may be
dissolved.
16. Per contra, the learned counsel appearing for
the respondents in his reply to the reply of the appellant
counsel would vehemently contend that application is filed
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under Order 39 Rules 1 and 2 of CPC. Though it is
contended that the suit is not maintainable and the
plaintiffs are not entitled for main relief as well as other
relief and the same cannot be accepted since Section 27 of
the Specific Relief Act is very clear in this regard and the
Trial Court also taken note of the issuance of paper
publication, legal notice and sale of the property and
Annexure-R15 also taken note of and all the materials
discloses that even the Single Judge as well as Division
Bench come to the conclusion that there is a mistake in
making the phodi and inclusion of the property which is
not the property of the plaintiffs. Hence, it does not
require any interference.
17. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record, it discloses that the suit is filed for the
relief of rescission of earlier contract of sale deed executed
in favour of the appellant herein. It is not in dispute that
there was two sale agreements by the plaintiffs in favour
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of the appellant herein and also no dispute with regard to
that there was a clause in the agreement that is clause - 5
with regard to the phodi is concerned and as on the date
of entering into the agreement of sale, there was no phodi
work and phodi work also undertaken subsequently i.e., in
the month of September, 2019. It is the case of the
plaintiffs that when the phodi work was got it done, fraud
was played and included the property other than the
property of the plaintiffs and to that effect a complaint was
given and enquiry also conducted by the concerned
department and prima facie found that a fraud has been
taken place while phoding the land. No doubt, the
document which has been produced by the plaintiffs is a
Government order restricting the sale of the property in
Sy.No.49 and at the time of selling the property, the
property number is mentioned as 114. In view of the
phodi, a new number has been assigned and the sale deed
was also taken place and common boundary was given in
respect of both the sale agreements while executing the
sale deed dated 04.12.2019.
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18. It is also important to note that on 09.12.2019
itself, a complaint was given to the concerned revisional
commissioner and the report is also sought and in terms of
the report, it is stated that some error has been crept in
making the phodi and fraud is also noticed and decision
also taken in suspending the Tahsildar and criminal case
also registered based on Annexure-R5 FIR. It is also
important to note that Single Judge in the writ petition
found that there was a fraud in preparing the phodi work
and the matter is also pending before the Division Bench
wherein certain directions were given by the Division
Bench in terms of Annexure-R9. It is the contention of the
appellant that there is a mistake only with regard to
inclusion of 28½ guntas and the same has to be
considered and they are ready to give an undertaking
stating that they will not sell the property in that 28½
guntas of land.
19. Having considered the documents which have
been placed before this Court with regard to the phodi
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work is concerned and the properties are situated in
different places. Admittedly the properties are not in terms
of the boundaries which have been mentioned in the
schedule of the sale deed and also the document placed by
the appellant is also different. The Division Bench in
W.A.No.755/2022, in paragraph 3 held as follows:
"However, in view of the contentious issues
involved in the matter more particularly the findings
recorded by the respondent No.2-Commissioner,
Department of Survey, Settlement and Land Records
in his order dated 16.04.2022 as per Annexure-R, we
deem it appropriate to direct respondent No.2 - The
Commissioner, Department of Survey, Settlement
and Land Records to submit a comprehensive report
to this Court by undertaking a fresh exercise of
conducting measurement of the area of land in
Sy.No.49 along with additional material/information
with regard to details of grants, names of the
grantees of the said land and details of alienation if
any. In the aforesaid process, respondent No.2 may
also undertake the exercise of phodi and durast in
accordance with applicable provisions of law."
20. Having taken note of this direction, it is very
clear that fresh exercise has been ordered by the Division
Bench in writ appeal. The counsel for the respondents now
produced the sketch before the Court with regard to the
extent of 28½ guntas is concerned and the matter is also
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seized before the Division Bench with regard to the phodi
work is concerned. However, taking note of the material
available on record, prima facie, it discloses that there is a
mistake on the part of phodi work and also inclusion of the
property which is not the property of the plaintiffs in the
sale deed dated 04.12.2019. The counsel for the appellant
submits that he is ready to give an undertaking for not to
alienate the disputed property and when the phodi work
report is submitted before the Division Bench and when
authenticated document is placed before the Division
Bench and the same is considered the in the writ appeal
with regard to the very phodi work is concerned, the main
dispute is also with regard to identity of the property of
the plaintiffs which is the subject matter of the sale deed
dated 04.12.2019. When such being the case, the very
contention of the counsel for the appellant that he will give
an undertaking to the extent of 28½ guntas stating that
he will not alienate and the said portion of the property
cannot be accepted. The relief sought is for rescission of
contract in terms of Section 27 of the Specific Relief Act
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and whether fraud has been played or not requires
enquiry. The Trial Court also while considering the
application filed under Order 39 Rules 1 and 2 of CPC also
considered mainly the reports of the concerned
department and when the parties made an allegation
about the fraud, misrepresentation, then the parties of the
alleged document can file a suit for rescission of contract
and even completed contract can be rescinded with the
proof of alienation by fraud, misrepresentation and same
is noticed by the Trial Court. The Trial Court also taken
note of the material available on record for execution of
GPA subsequent to the filing of the writ petition earlier.
The very dispute according to the plaintiffs is that phodi
work is got it done at the instance of appellant herein. On
the other hand, the contention of the appellant that phodi
work is got it done by the respondents/plaintiffs
themselves. When such being the case, same also
requires consideration during the course of the trial.
Hence, I do not find any error committed by the Trial
Court in allowing the application filed under Order 39 Rule
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1 and 2 of CPC restraining the appellant herein from
alienating the application schedule property till the
disposal of the matter by granting an order of temporary
injunction.
21. It is also important to note that the Trial Court
also taken note of the fact that a publication was given by
the very appellant herein for selling of the property and
thereafter notices were also exchanged between the
parties. When there is a paper publication, it also clearly
discloses that appellant is intending to sell the property
and when the very identity of the property is in dispute
and the property is sold during the pendency of the suit, it
may lead to multiplicity of proceedings. Hence, I do not
find any error in the order of the Trial Court thus, there is
no merit in the present appeal.
22. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
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The counsel of the appellant would vehemently
contend that this Court can direct the
respondents to deposit the sale consideration
which they have received and the counsel for the
respondents submits that if they file an
application, the same can be disposed of by the
Trial Court in accordance with law. Hence, the
appellant is given liberty to file such an
application before the Trial Court and the Trial
Court is directed to decide the application in
accordance with law.
Sd/-
JUDGE
SN
