Karnataka High Court
Ningappa S/O Mudakappa Gonal And Ors vs Gangamma W/O Amarappa Ammanawar And Anr on 27 June, 2024
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RFA No.200055 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200055 OF 2021 (SP)
BETWEEN:
1. NINGAPPA
S/O MUDAKAPPA GONAL,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
2. MANAPPA
S/O MUDAKAPPA GONAL,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE,
Digitally signed by 3. BHIMANNA @ BHIMARAYA
BASALINGAPPA
SHIVARAJ S/O MUDAKAPPA GONAL,
DHUTTARGAON
AGED ABOUT 43 YEARS,
Location: HIGH
COURT OF
KARNATAKA ALL R/O: DEVARGOL VILLAGE,
SHORAPUR TALUK,
YADGIR DISTRICT,
NOW AT RASTAPUR VILLAGE,
SHORAPUR TALUK,
YADGIR DISTRICT
...APPELLANTS
(BY SRI S.B. HANGARKI, ADVOCATE)
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RFA No.200055 of 2021
AND:
1. GANGAMMA
W/O AMARAPPA AMMANAWAR,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE
R/O: RASTAPUR VILLAGE,
TQ: SHAHAPUR, DIST: YADGIRI.
2. BASAWARAJ
S/O MUDAKAPPA GONAL,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/O: RASTAPUR VILLAGE,
TQ: SHAHAPUR, DIST: YADGIRI.
...RESPONDENTS
(BY SRI R.S.SIDHAPURKAR, ADVOCATE FOR C/R-1;
R2 - SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 R/W ORDER 41 RULE 1 OF C.P.C., PRAYING TO ALLOW THIS
APPEAL WITH COSTS, BY SETTING-ASIDE THE ORDER PASSED
BY THE COURT OF THE SENIOR CIVIL JUDGE AND J.M.F.C.,
SHAHAPUR IN EX.CASE NO.77/2019 DATED 24.05.2021 ON
I.A.NO.2 FILED UNDER ORDER XXI RULE 97 AND 58 READ
WITH SECTION 151 OF C.P.C., AND THEREBY CONSEQUENTLY
ALLOW THE I.A.NO.2 FILED UNDER ORDER XXI RULE 97 AND
58 READ WITH SECTION 151 C.P.C., BY DISMISSING THE
EXECUTION PETITION NO.77/2019, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING,
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
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RFA No.200055 of 2021
JUDGMENT
This Regular First Appeal is filed by the appellants
challenging the order dated 24.05.2021 passed on
I.A.No.2 filed under Order XXI Rules 97 and 58 read with
Section 151 of CPC, in Execution Case No.77/2019 by the
Senior Civil Judge and JMFC, Shahapur (for short,
hereinafter referred to as 'the executing Court').
2. For the sake of convenience, the parties are
referred to as per their ranking before the executing
Court. The appellants are the objectors, respondent No.1
is the decree holder and respondent No.2 is the judgment
debtor.
3. Brief facts of the case are that, the objectors
filed an application in the execution petition contending
that the decree passed in O.S.No.30/2018 in respect of
execution petition schedule property is not binding on their
rights and title over the properties. It is contended that
the objectors and judgment debtors are the brothers.
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Since the judgment debtor is a junior member of their
joint family, he had no exclusive right, title or interest over
the execution petition schedule property to execute the
agreement of sale in favour of the decree holder. The
objectors, their sisters and brothers have filed suit in
O.S.No.44/2018 for the relief of partition and separate
possession against the judgment debtor. The said suit was
decreed on 17.12.2018. In the said compromise decree,
the execution petition schedule property was allotted to
the share of objector Nos.1 and 2. In view of the same,
the execution petition filed by the decree holder is not
maintainable. It is contended that the decree holder is not
entitled for a decree for specific performance of contract.
It is contended that the children of the judgment debtor
have also filed suit in O.S.No.138/2019 in respect of
execution petition schedule property. Hence, prayed to
allow the application filed by the objectors.
4. The decree holder filed objections contending
that the application filed by the objectors is not
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maintainable and the objectors have no right, title or
interest over the execution petition schedule property. It is
contended that the decree holder filed suit in
O.S.No.30/2018 for the relief of specific performance of
contract contending that the judgment debtor agreed to
sell the execution petition schedule property to the decree
holder and the judgment debtor committed breach of
contract. Therefore, the decree holder was forced to file
suit in O.S.No.30/2018. In the said suit, the objectors filed
an application to implead them as defendants. The said
application came to be rejected. The said order of rejection
has attained finality. It is stated that during pendency of
the suit in O.S.No.30/2018, the judgment debtor colluding
with his siblings got filed suit in O.S.No.44/2018 for
partition and separate possession. In the said suit, the
objectors filed an application to implead the decree holder.
The said application came to be dismissed. The
compromise decree passed in O.S.No.44/2018 is not
binding on the decree holder as he is not a party to the
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said suit and the said compromise decree is a collusive
decree. Hence, prayed to dismiss the application.
5. The executing Court, on the basis of the
pleadings of the parties, framed the following issues:
i) Whether the objectors prove that
they are having independent right
over the execution petition
schedule property?
ii) What order or decree?
6. The objectors in order to substantiate their
application got examined objector No.2 as P.W.1 and also
got marked 70 documents at Exs.P1 to P70. The decree
holder has not entered into witness box. The decree holder
has submitted that he has no oral evidence on the
application and the judgment debtor inspite of giving an
opportunity has not adduced evidence on the application.
7. The executing Court, after recording the
evidence of the objectors, hearing on both sides and on
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assessment of the material placed on record, answered
issue No.1 in the negative and issue No.2 as per the final
order and dismissed I.A.No.2 with costs vide order dated
24.05.2021.
8. The objectors, aggrieved by the order passed
on I.A.No.2 in Execution Case No.77/2019 by the Senior
Civil Judge and JMFC, Shahapur, have filed this Regular
First Appeal.
9. Heard the learned counsel for the objectors and
also learned counsel for the decree holder.
10. Learned counsel for the objectors submits that
the objectors filed suit in O.S.No.44/2018 against the
judgment debtor for relief of partition and separate
possession in respect of execution petition schedule
property. In the said suit, the objectors filed an application
to implead the decree holder as a defendant. The decree
holder appeared and objected for the said application. The
said application came to be rejected. He submits that the
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objectors and judgment debtor due to intervention of the
respectable persons have amicably settled the dispute and
filed a compromise petition in O.S.No.44/2018 and the
Court has passed the compromise decree. In the said
compromise decree, the execution petition schedule
property was fallen to the share of the objectors. Further,
the compromise decree is binding on the decree holder as
he is claiming right through the judgment debtor. The
decree holder has not challenged the compromise decree
passed in O.S.No.44/2018. He further submitted that the
execution petition schedule property was the ancestral
property of the judgment debtor and objectors. The said
property was mutated in the name of the judgment
debtor. Mere mutation entries do not convey or extinguish
any title and he submits that the entries are relevant only
for the purpose of collection of land revenue. He further
submits that the judgment debtor alone has no right to
alienate the execution petition schedule property. Hence,
he submitted that the executing Court has committed an
error in dismissing the application.
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11. Further, in order to buttress his arguments, he
has placed reliance on the judgments of the Hon'ble Apex
Court in the case of H.Lakshmaiah Reddy and others
vs. L.Venkatesh Reddy reported in AIR 2015 SC 2499,
Ramdas vs. Sitabai and others reported in AIR 2009
SC 2735 and Triloki Nath Singh vs. Anirudh Singh (D)
Thr. Lrs., and Others reported in AIR 2020 SC 2111.
On these grounds, he prays to allow the appeal.
12. Per contra, learned counsel for the decree
holder supports the impugned order passed by the
executing Court and prays to dismiss the appeal.
13. We have perused the records and considered
the submissions of the leaned counsel for the parties.
14. To decide the appeal, the following points would
arise for our consideration:
1. Whether the objectors prove that the
order passed on I.A.No.2 is arbitrary and
erroneous?
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2. What order or decree?
15. Point No.1: It is not in dispute that the decree
holder filed a suit for specific performance of contract in
O.S.No.30/2018 contending that the judgment debtor
agreed to sell the execution petition schedule property in
favour of decree holder. The judgment debtor failed to
perform his part of the contract. The decree holder,
aggrieved by the inaction on the part of the judgment
debtor in not executing the registered sale deed, filed suit
in O.S.No.30/2018. In the said suit, the judgment debtor
filed written statement and contested the case. Further,
the objectors also filed an application to implead them as
defendants in the said suit. The said application was
rejected by the Trial Court. The objectors did not
challenge the order passed on the said application and the
said order has attained finality. During the pendency of
the said suit, objectors filed suit in O.S.No.44/2018 for the
relief of partition and separate possession against the
judgment debtor. In the said suit, objectors filed an
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application to implead the decree holder as defendant. The
decree holder filed objection to the said application. The
Trial Court rejected the application for impleadment of the
decree holder as defendant. The objectors did not
challenge the order and the said order has attained
finality. After rejection of the application, the objectors
and the judgment debtor colluding with each other got
filed compromise petition and obtained compromise decree
in order to deprive the right of the decree holder. The
decree holder is not a party to the said suit. The decree
passed in O.S.No.44/2018 is not binding on the decree
holder. From the perusal of the records, it clearly discloses
that as on the date of entering into an agreement of sale
by the judgment debtor in favour of the decree holder, the
said property stood in the name of the judgment debtor.
The decree holder after verifying the records found that
the property stood in the name of the judgment debtor.
16. Objector No.2 was examined as PW.1. He has
reiterated the contents of the application in the
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examination-in-chief and produced the documents. Ex.P1
is the certified copy of the plaint in O.S.No.30/2018 filed
by the decree holder against judgment debtor for specific
performance of contract. Ex.P2 is the written statement
filed by the judgment debtor in O.S.No.30/2018. Ex.P3 is
the certified copy of the issues framed in O.S.No.30/2018.
In the said suit, the decree holder was examined through
power of attorney holder who has reiterated the plaint
averments. Ex.P4 is the certified copy of the deposition of
Amarapa who is the power of attorney holder of the
decree holder. Ex.P5 is the deposition of Ashok who has
been examined by the decree holder as PW.2 in
O.S.No.30/2018. Ex.P6 is the Mutation register. Exs.P7 to
P23 are the RTC extract in respect of land in Sy.No.180/2.
Ex.P24 is the certified copy of the plaint in
O.S.No.44/2018 filed by the objectors and others against
the judgment debtor. Ex.P25 is the certified copy of the
compromise decree passed in O.S.No.44/2018. Ex.P26 is
the certified copy of the compromise petition filed by the
parties in O.S.No.44/2018. Ex.P27 is the application filed
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under Order I Rule 10 read with Section 151 of CPC to
implead the present decree holder as defendant in the said
suit. Ex.P28 is the certified copy of the objection filed by
the decree holder to the application. Ex.P29 is the certified
copy of the order passed on the said application in
O.S.No.44/2018. The said application filed by the
objectors was rejected by the Trial Court vide order dated
24.11.2018. Ex.30 is the certified copy of the registered
agreement of sale executed by the judgment debtor in
favour of the decree holder which discloses that the
judgment debtor agreed to sell the execution petition
schedule property in favour of the decree holder for valid
consideration. Exs.P31 and P32 are the mutation registers.
Exs.P33 to P62 are the record of rights in respect of land
in Sy.No.180/1. Ex.P63 is the certified copy of the
compromise decree passed in O.S.No.138/2019. Ex.P64 is
the certified copy of the plaint wherein the judgment
debtor's wife and children have filed suit for partition and
separate possession against the judgment debtor in
respect of land in Sy.No.180/5. Exs.P65 to P67 are the
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record of rights in respect of land bearing Sy.No.265/1.
Ex.P68 is the record of right in respect of land in
Sy.No.265/2. Ex.P69 is the record of rights in respect of
land in Sy.No.261/2. Ex.P70 is the certified copy of the
mutation extract in respect of land bearing Sy.No.265/*/2.
17. From the perusal of the records produced by
the objectors, it discloses that the judgment debtor has
entered into an agreement of sale with the decree holder
in regard to execution petition schedule property for
consideration of Rs.16,40,000/-. Accordingly, the decree
holder has paid a sum of Rs.10,40,000/- as an advance
amount and balance was agreed to be paid at the time of
execution of registration of sale deed. The judgment
debtor did not comply with the terms and conditions.
Accordingly, the decree holder filed suit in
O.S.No.30/2018. The said suit was filed by the decree
holder on 19.06.2018 and the judgment debtor filed
written statement on 15.12.2018. During the pendency of
the suit in O.S.No.30/2018, objectors filed suit in
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O.S.No.44/2018 on 03.08.2018. The said suit got filed by
the judgment debtor through the objectors in order to
defeat the rights of the decree holder. Further, children of
judgment debtor have also filed suit in O.S.No.138/2019.
Even the said the suit was ended in compromise and the
compromise decree was drawn on 08.02.2020. As could be
seen from the records, the judgment debtor is filing suits
through siblings and children. Further, the records
produced by the decree holder discloses that though the
objectors have filed application to get implead themselves
in the suit in O.S.No.30/2018, the said application was
rejected by the Trial Court. They have also made an
attempt to implead the decree holder in O.S.No.44/2018.
Even in the said suit, the application was rejected by the
Trial Court. The objectors themselves have produced copy
of the record of rights i.e., Exs.P10 to P13 are the record
of right in respect of land bearing Sy.No.180/2 measuring
4 acres 17 guntas. The said land was mutated in the name
of the judgment debtor as per the partition dated
15.09.2005. The objectors did not challenge the entries in
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the name of the judgment debtor and record of rights
stood in the name of the judgment debtor and objector
No.3. There was partition in the family of the judgment
debtor and objectors and in the said partition, the
execution petition schedule property was allotted to the
judgment debtor and he became the owner of the
execution petition schedule property and he has got every
right to alienate the same for family and legal necessity.
The objectors have failed to establish that they have got
independent right over the execution petition schedule
property.
18. It is further case of the objectors that the
execution petition schedule property is the undivided joint
family property. The said contention is inconsistent with
the documents produced by the objectors, at one stretch,
the objectors contend that it is an undivided joint family
property and at another stretch, the objectors claim that
they are the absolute owners of the execution petition
scheduled property by virtue of the compromise decree
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passed in O.S.No.44/2018. The objectors have got doubt
of their own title with regard to the execution petition
schedule property. The judgment debtor in order to
protect the execution of registered agreement of sale has
got filed the suits through his brothers and his children in
O.S.No.44/2018 and O.S.No.138/2019 and both the suits
were ended in compromise. The act of the judgment
debtor in filing the suit after suit is not bonafide and
further, objectors are not having any independent right
over the execution petition schedule property.
19. Further, learned counsel for the decree holder
has filed the memo along with the registered sale deed
executed in favour of the decree holder pursuant to the
judgment and decree passed in O.S.No.30/2018. The
executing Court, considering the material on record, was
justified in passing the impugned order. We do not find
any error in the impugned order. We decline to interfere
with the order passed by the executive Court.
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20. The judgments relied upon by the learned
counsel for the objectors are not applicable to the case on
hand. The Hon'ble Apex Court in the case of Triloki Nath
Singh (supra), held that the compromise decree can be
challenged by a stranger. There is no dispute in regard to
the law laid down by the Hon'ble Apex Court. In the
instant case, the objectors ought to have challenged the
judgment passed in O.S.No.30/2018.
21. Learned counsel for the objectors has also
placed reliance on the judgment of the Hon'ble Apex Court
in the case of Ramdas (supra) wherein it is held that an
undivided share of co-shares may be a subject matter of
sale, but possession cannot be handed over to vendee
unless property is partitioned by metes and bounds
amicably. Admittedly, in the instant case, there was
partition effected between the family members of the
judgment debtor and in the partition, the execution
petition schedule property has fallen to the share of the
judgment debtor and the judgment debtor has executed
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an agreement of sale in favour of the decree holder.
Admittedly, the execution petition schedule property is not
the joint family property of the objectors and judgment
debtor. The judgment debtor was the owner of the
execution petition schedule property. Hence, the judgment
relied upon by the learned counsel for the objectors is not
applicable to the case on hand.
22. Further, he has also relied upon the judgment
of the Hon'ble Apex Court in the case of H.Lakshmaiah
Reddy (supra) wherein the Hon'ble Apex Court held that
mutation entry does not convey or extinguish any title.
There is no dispute that mutation entry does not convey or
extinguish any title. In the said judgment, the plaintiff filed
suit for declaration of title and consequential relief of
permanent injunction on the basis of the mutation entries.
In the instant case, the judgment debtor has acquired the
property under the partition and the same was mutated in
the name of the judgment debtor. As observed above, the
said mutation entry was not challenged by the objectors.
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It is for the objectors to establish that they have got
independent right over the execution petition schedule
property and they have failed to establish the same.
Hence, the said judgment is not applicable to the case on
hand.
23. Further, as observed above, the judgment
debtor has already executed the sale deed during the
pendency of the appeal, as there was no interim order. In
view of execution of the registered sale deed, nothing
further survives for consideration in this appeal.
24. In view of the above discussion, we answer
point No.1 in the negative.
25. Point No.2: Accordingly, we proceed to pass
the following:
ORDER
The Regular First Appeal is dismissed.
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The order dated 24.05.2021 passed on I.A.No.2 in
Execution Case No.77/2019 by the Senior Civil Judge and
JMFC, Shahapur, is confirmed.
Sd/-
JUDGE
Sd/-
JUDGE
NB
Ct;Vk
