Karnataka High Court
Smt. Shwetha S vs Sri. Yathin Gowtham. U on 8 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.2785/2024 (CPC)
BETWEEN:
SMT. SHWETHA S.,
D/O SRI SHIVAJI RAO S.Y.,
W/O SRI MAHENDRANATH,
AGED ABOUT 40 YEARS,
RESIDING AT NO.303,
'TUSHAR REGENCY',
1ST MAIN, 3RD CROSS,
HOLY CROSS SCHOOL ROAD,
MALLESHPALYA,
BENGALURU-560 075. ... APPELLANT
(BY SRI R. SUBRAMANYA, ADVOCATE FOR
SRI RAJU S., ADVOCATE)
AND:
1. SRI YATHIN GOWTHAM. U.,
S/O SRI B.UTTAM KUMAR,
AGED ABOUT 27 YEARS,
R/AT NO.404, BILVASHREE NILAYA,
9TH CROSS, 1ST MAIN ROAD,
PANCHASHEELA NAGAR,
MUDALAPALYA,
BENGALURU - 560 072.
2. SMT. PREETHI G.K.
W/O SRI MANJUNATH D.R.
AGED ABOUT 36 YEARS,
R/AT NO.36,
2
DONKIHALLI, KALKERE,
TURUVEKERE TALUK - 572221. ... RESPONDENTS
(BY SRI MANJUNATH H., ADVOCATE FOR R1 & R2)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 25.04.2024
PASSED ON I.A.NOS.1 AND 2 IN O.S.NO.2391/2024 ON THE
FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, REJECTING THE I.A.NO.1 AND 2 FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.10.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. This miscellaneous first appeal is filed against the
rejection of I.A.Nos.1 and 2 filed under Order 39 Rules 1 and 2
of CPC passed in O.S.No.2391/2024 dated 25.04.2024, praying
this Court to set aside the orders.
3. The factual matrix of the case of the
appellant/plaintiff before the Trial Court is that the suit is filed
for the relief of declaration and other consequential injunction on
the ground that the appellant is the absolute owner of the
property, which is morefully described in the schedule and the
property now comes under the BBMP and all revenue records
stands in the name of the plaintiff. It is contended that the
plaintiff became the owner of the property by virtue of registered
gift deed dated 03.08.2020. It is contended that the schedule
property carved out of Sy.No.67 measuring 4 acres 24 guntas
originally belongs to one late G.H.Bangera, who is the
grandfather of respondent No.1, acquired under the registered
sale deed dated 15.04.1971. Subsequently, he sold the entire
extent under four registered sale deeds dated 23.09.1996 in
favour of the original vendor of this property Sri M.D.
Ramakrishnaiah and other three persons. The said M.D.
Ramakrishnaiah has acquired an extent of 1 acre 10 guntas out
of 4 acres 24 guntas and formed the layout in entire Sy.Nos.67,
281 and 282 with the consent of other owners, who had
purchased the property from G.H.Bangera. The said property
was converted for residential purpose and after the formation of
the layout, the said M.D. Ramakrishnaiah sold site No.16
measuring east to west 39 ft. and north to south 30 ft. in favour
of Sri Naveen Kumar and Smt. K.R.Shilpa under the registered
sale deed dated 08.07.2010. Thereafter, both of them sold the
same to one Shivaji Rao vide sale deed dated 15.06.2012 and he
was paying the tax and he gifted the schedule property to the
appellant, who is his daughter. The plaintiff is exercising her
absolute right over the suit schedule property. It is contended
that respondent No.2 trespassed into the suit schedule property
and illegally trying to put up the construction on the schedule
property on 20.02.2024 without any rights. Immediately, when
it was verified before the Sub-Registrar it was noticed that the
father of respondent No.1, who is the son of G.H.Bangera in
collusion with other children have created a compromise decree
in O.S.No.5442/2009 on the strength of the revenue entries and
subsequently got created the gift deed in favour of respondent
No.1 on 19.05.2023 and thereafter the sale deed was created in
favour of respondent No.2 on 07.12.2023 in respect of the very
schedule property. The respondent No.2 illegally trespassed into
the schedule property and started putting up the construction.
Noticing the said illegal act of respondent No.2, the appellant
approached the Trial Court seeking for declaration of her title
and possession and interalia, filed two applications i.e., I.A.Nos.1
and 2 under Order 39 Rules 1 and 2 of CPC seeking temporary
injunction restraining respondent No.2 from alienating or
creating any third party rights and also restraining from putting
up any construction.
4. The said I.As. are resisted by filing statement of
objections by the defendants contending that the suit filed by
the plaintiff assailing the validity and correctness of compromise
decree passed in O.S.No.5442/2009 without impleading the
parties to the said compromise decree in the present suit is not
maintainable. The said suit was dismissed and the same has not
been challenged and it has attained its finality. It is also
contended that when there is a compromise decree and decree is
granted by the Court and when the plaintiff has stepped into the
shoes of the alleged vendor and as such, she cannot maintain a
separate suit and the suit is barred under Sections 10 and 11 of
CPC and when the suit itself is not maintainable, she cannot seek
any relief and also not entitled for any temporary injunction. It
is contended that the sale deeds which are relied upon by the
plaintiff are bogus, concocted and created sale deeds and the
very execution of the sale deed by their father are disputed and
the plaintiff got the property by way of gift, since the plaintiff's
father had purchased the property and having absolute right
gifted the property on 19.05.2023 and defendant No.1 has sold
the schedule property in favour of defendant No.2 by sale deed
dated 07.12.2023 and defendant No.2 is in lawful possession
and enjoyment of the schedule property.
5. The Trial Court having considered the grounds urged,
formulated the points whether the plaintiff has made out a prima
case and balance of convenience and whether the plaintiff would
be put to irreparable loss and injury, if an order of temporary
injunction is not granted. The Trial Court having considered both
the I.As. together, answered point No.1 in the negative and
answered point Nos.2 and 3 as does not survive for
consideration and rejected the same.
6. Being aggrieved by the rejection of the two I.As., the
present appeal is filed before this Court.
7. The main contention of the appellant before this
Court is that there is no dispute with regard to the fact that one
G.H.Bangera was the original owner of the schedule property to
an extent of 4 acres 24 guntas, which he had purchased on
15.04.1971. The learned counsel contend that subsequently he
sold the entire extent to different persons and one Sri M.D.
Ramakrishnaiah, who had purchased to an extent of 1 acre 10
guntas, with the consent of other purchasers formed the sites
and sold the same and once the property was sold, the question
of filing a suit for the relief of partition does not arise and
suppressing the same obtained the fraudulent decree of
partition. The learned counsel contend that the said decree was
drawn in respect of share of Uttam Kumar and he claims site
No.16 had fallen to his share and he had gifted the same in
favour of Yathin Gowtham on 18.05.2023, who is none other
than the son of Uttam Kumar and grandson of G.H.Bangera. The
learned counsel contend that when the property was sold, they
filed collusive suit to deceive the rights of the persons, who
purchased residential sites in the layout formed after
G.H.Bangera sold the same and the suit was filed after the death
of G.H.Bangera and indeed he did not retain any property.
Neither the subsequent purchasers from G.H.Bangera nor the
father of the appellant were arraigned as parties to the said suit
and the said decree itself is fictitious and fraudulent and they
indulged in creation of documents. It is also contended that the
suit filed by Sri M.D. Ramakrishnaiah seeking declaration and
injunction has been dismissed without determining the rights of
the parties on merits and it was dismissed as not maintainable
as he has to seek the relief under Order 23 Rule 3A of CPC and
the same is not an adjudication and the matter has to be
adjudicated before this Court when the relief is sought for
declaration and hence the Trial Court committed an error in
rejecting the applications.
8. The learned counsel for the appellant in support of
his arguments relied upon the judgment of the Hon'ble Apex
Court in the case of PARAYYA ALLAYYA HITTALAMANI v.
SRI PARAYYA GURULINGAYYA POOJARI AND OTHERS
reported in (2007) 14 SCC 318. Referring this judgment, the
learned counsel would contend that compromise decree is not
binding on the appellant and the same would bind the parties,
who have signed the compromise. A non-signatory to the
compromise petition and the decree drawn is not bound by the
compromise petition. The compromise decree is an agreement
between the parties with the seal of the Court.
9. The learned counsel also relied upon the judgment of
the Hon'ble Apex Court in the case of SNEH GUPTA v. DEVI
SARUP AND OTHERS reported in (2009) 6 SCC 194 and
brought to the notice of this Court paragraph Nos.24 to 27,
wherein discussion was made with regard to Order 23 Rule 3 of
CPC that a compromise decree is not binding on such defendants
who are not parties thereto. The Court has also a duty to
prevent injustice to any of the parties to the litigation. It cannot
exercise its jurisdiction to allow the proceedings to be used to
work as substantial injustice. There is no need to challenge the
compromise decree as it has no binding effect and no declaration
is necessary.
10. The learned counsel also relied upon the judgment of
the Hon'ble Apex Court in the case of HOWRAH DAW MANGLA
HAT B.B. SAMITY v. PRONAB KUMAR DAW reported in
(2001) 6 SCC 534 and relied upon paragraph No.22 of the
judgment, wherein discussion was made with regard to the
expressions "void" and "voidable" have been the subject matter
of consideration on innumerable occasions by Courts. If it is
proved that the document is forged and fabricated and a
declaration to that effect is given, a transaction becomes void
from the very beginning.
11. The learned counsel also relied upon the judgment of
the Hon'ble Apex Court in the case of STATE OF UTTAR
PRADESH AND OTHERS v. UNITED BANK OF INDIA AND
OTHERS reported in (2016) 2 SCC 757 and brought to the
notice of this Court paragraph No.48 of the judgment. The
learned counsel also relied upon the judgment of the Hon'ble
Apex Court in the case of PRINCIPAL SECRETARY,
GOVERNMENT OF KARNATAKA AND ANOTHER v. RAGINI
NARAYAN AND ANOTHER reported in (2016) 10 SCC 424
and brought to the notice of this Court paragraph No.15, wherein
discussion was made with regard to Section 47 of the
Registration Act. It is held that the document registered on a
subsequent date, operates from the date of execution, not from
the date of registration.
12. The learned counsel also relied upon the judgment of
the Hon'ble Apex Court in the case of KANWAR RAJ SINGH
(D) THROUGH LRS. v. GEJO (D) THOURGH LRS AND
OTHERS reported in (2024) 2 SCC 6416 and brought to the
notice of this Court paragraph Nos.7, 9 and 12, wherein
discussion was made with regard to that Section 47 of the
Registration Act does not deal with the issue when the sale is
complete. The Constitution Bench held that Section 47 applies
to a document only after it has been registered, and it has
nothing to do with the completion of the sale when the
instrument is one of sale. It was also held that once a document
is registered, it will operate from an earlier date, as provided in
Section 47 of the Registration Act. The sale deed was registered
with the interpolation made about the description/area of the
property sold. The first defendant admittedly made the said
interpolation after it was executed but before it was registered.
In terms of Section 47 of the Registration Act, a registered sale
deed where entire consideration is paid would operate from the
date of its execution. Thus, the sale deed as originally executed
will operate.
13. Per contra, the learned counsel for the respondents
in his argument would vehemently contend that the Trial Court
considered the material available on record and taken note of
the fact that earlier the said M.D. Ramakrishnaiah had filed a
suit and the same was dismissed and the same attained its
finality and now they cannot question the same and also made
an observation that without challenging the judgment and
decree passed in favour of the respondents, the very suit itself is
not maintainable and hence the question of granting the relief
does not arise. The learned counsel also produced the
photographs, which depicts construction of entire building and
half portion was plastered and remaining portion yet to be
plastered and building has come up and question of granting the
relief not to put up construction does not arise.
14. The learned counsel in support of his argument relied
upon the additional document of certified copy of deficit stamp
duty paid receipt pertaining to sale deed dated 23.09.1996
allegedly between the grandfather of respondent No.1, namely
G.H.Bangera and M.D. Ramakrishnaiah i.e., to the extent of
executing the sale deed and also confirming the case is dropped
on account of payment of deficit stamp duty. The learned
counsel also produced the memorandum for fixing the market
value of the property under Section 45A and the sending back of
the document to the office of the Sub-Registrar for further action
having received the stamp duty.
15. The learned counsel also relied upon the judgment of
this Court in the case of DIGAMBAR WARTY AND OTHERS v.
DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT AND
ANOTHER reported in ILR 2013 KAR 2099, wherein it is held
that if they have already sold their interest in the property under
the registered sale deed, the purchaser gets no title because the
seller acquired no title. Therefore, as a duty is cast on the seller
to make good the title of the purchaser, even in the absence of
the authority enforcing the right to recover the stamp duty, if
proper stamp duty and penalty is paid, along with registration
fee, it could be registered. That is the object behind this
legislation. The learned counsel contend that when the
document was referred for under valuation and the same is
recoverable and brought to the notice of this Court paragraph
Nos.67, 68, 69 and 70 of the judgment, wherein discussion was
made with regard to the payment of stamp duty is concerned
and contend that stamp duty is paid and document has been
released.
16. The learned counsel contend that the Trial Court has
given the reasoning for dismissal of both the I.As. and brought
to the notice of this Court paragraph No.13 of the Trial Court's
order, wherein clear discussion was made that suit filed by M.D.
Ramakrishnaiah was dismissed and the same has attained its
finality and cannot ignore the compromise decree, unless the
same has been challenged and in the suit also no relief is sought
in respect of the said judgment and decree and when the
plaintiff having stepped into the shoes of M.D. Ramakrishnaiah is
not entitled to contend that she is not a party to the said suit in
O.S.No.6534/2011 and the decree passed therein is not binding
on her and she is entitled to simply ignore the compromise
decree and unless the validity, legality and correctness of the
compromise decree has been decided, there cannot be any
declaration and the present suit of the plaintiff without seeking
the relief for setting aside the compromise decree is not
maintainable and hence the question of making out a prima facie
case does not arise and hence it does not require interference of
this Court.
17. Having heard the learned counsel for the appellant
and the learned counsel for the respondents and having perused
the grounds and reasoning of the Trial Court, the points that
arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
dismissing both the I.As., wherein relief is
sought not to encumber and not to put up
construction?
(ii) What order?
18. Having perused the material on record, it is not in
dispute that G.H.Bangera had purchased the property in the
year 1971 from one Mr.Joseph and the same was registered on
15.04.1971. It is not in dispute that the property was converted
to the extent of 1 acre 10 guntas and the said property is
bearing Sy.No.67. It is important to note that subsequent to
converting of 1 acre 10 guntas, it is the claim of the plaintiff that
the said G.H.Bangera had sold 1 acre 10 guntas in favour of
M.D. Ramakrishnaiah and the said M.D. Ramakrishnaiah, with
the consent of other three purchasers who had purchased the
remaining property from G.H.Bangera, formed the layout and
sold the property. It is the contention of the plaintiff that site
No.16 was retained by M.D. Ramakrishnaiah and he sold the
same in favour of Naveen Kumar and Naveen Kumar in turn sold
the property in favour of Shivaji Rao in 2012 and the said Shivaji
Rao gifted the property in favour of the appellant on 03.08.2020.
The main contention of the defendants is that no such sale deeds
are executed by G.H.Bangera and those sale deeds are created.
Whether those sale deeds are created or not, the matter has to
be adjudicated.
19. It is also not in dispute that the parties in
O.S.No.5442/2009 filed the suit for the relief of partition in the
year 2009 i.e., subsequent to the alleged sale made by
G.H.Bangera in favour of four persons and they obtained the
decree by compromising the same on 28.10.2009. In terms of
compromise, it is the contention that site No.16 was allotted in
favour of Uttam Kumar, who is the son of G.H.Bangera and in
turn the said Uttam Kumar gifted the said site in favour of his
son Yathin Gowtham, vide gift deed dated 19.05.2023. The
moot question involved in the matter is whether the said
G.H.Bangera had sold the entire extent of 4 acres 24 guntas in
favour of different persons and the validity of the judgment and
decree also to be looked into in a suit filed for the relief of
declaration. The said M.D. Ramakrishnaiah had filed a suit
seeking the relief of injunction and declaration and the same was
dismissed on the ground that he has to approach the Court by
filing an application under Order 23 Rule 3A of CPC and no
doubt, he did not question the dismissal of the suit and it has
attained its finality. But the fact is that he had already sold site
No.16 in favour of Naveen Kumar on 08.07.2010 and the suit
filed by him in O.S.No.6534/2011 was dismissed subsequently
after selling the property. No doubt, in the present suit the relief
is not sought in respect of the judgment and decree and only on
that ground the Court cannot decline to grant the relief of
temporary injunction and the very purpose and object in
granting the temporary injunction is to prevent the multiplicity of
the proceedings. The very conclusion of the Trial Court that
when the suit itself is not maintainable, unless the relief is
sought for declaring the judgment and decree is null and void is
erroneous. The Court has to take note of the prima facie
material that the property originally belongs to G.H.Bangera is
not in dispute. The registered sale deeds are produced before
the Court for having executed the sale deed. When such being
the case, the Court has to take note of the conduct of the
respondents, who had filed O.S.No.5442/2009 subsequent to the
selling of the property and the plaintiff can seek for other relief
in the suit and if the property is sold, if the respondents have
taken up construction, it will lead to multiplicity of proceedings
and the same has not been taken note of by the Trial Court. The
Trial Court ought to have granted the relief of temporary
injunction not to alienate the suit schedule property, as it may
lead to multiplicity of proceedings. The Trial Court lost sight of
that the sale deeds are executed by the original owner
G.H.Bangera and thereafter suit was filed for the relief of
partition among the legal heirs of G.H.Bangera and during the
lifetime of G.H.Bangera, no such suit was filed and after his
death only the suit was filed and got partitioned the property.
20. The other relief sought is not to put up construction
and admittedly the respondents have already put up the
construction and the photographs which have been produced
before the Court evidence the fact that already building has been
completed and plastering work has to be done. The Court has to
decide with regard to the declaration and consequential
injunction. Even if any application is filed for other relief also,
the Court can adjudicate the same. When such being the case,
when construction is made and photographs depicts the same,
the question of granting the relief of temporary injunction
restraining the respondents from putting up construction does
not arise and building has already come up. However, it is made
clear that the respondents/defendants cannot claim equity, if the
plaintiff succeeds in the suit and hence the order of the Trial
Court requires to be modified and accordingly point for
consideration is answered.
21. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) Consequently, I.A.No.1 is allowed restraining
the respondents from alienating the property,
till the disposal of the suit.
(iii) Insofar as I.A.No.2 is concerned, it is made
clear by allowing the application in part that
the respondents cannot claim equity, if the
appellant succeeds in the suit.
Sd/-
(H.P. SANDESH)
JUDGE
MD
