Allowed

Munishamappa S/O Late Narayanappa v. Sri v N Nagaraju S/O Late Narayanaswamy

Karnataka HC2 Nov 2020RSA/3342/2006

Case brief

AI extract

What is this about?

In a property dispute involving village office land, the High Court held that an earlier sale deed by the plaintiff's father to a third party entitled that third party to title and possession, even without actual prior delivery of possession, and that the defendant acquired valid rights through a compromise decree with said third party, leading to the dismissal of the plaintiff's suit and the sett

What did the court decide?

The judgment and decree dated 05.09.2006 in R.A.No.42/2003 and the judgment and decree dated 04.01.2003 in O.S.No.190/1999 are set aside. The suit of the plaintiff is dismissed.

Munishamappa S/O Late Narayanappa Vs Sri v N Nagaraju S/O Late… — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.S.A.No.3342/2006

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BETWEEN:

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Munishamappa S/o. late Narayanappa 73 years Residing at Cheedachikkanahalli Nandi Hobli, Chickballapur Taluk Kolar District - 562101

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...Appellant

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(By Sri. G.Balakrishna Shastry, Advocate)

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AND:

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Sri. V.N.Nagaraju S/o. late Narayanaswamy Aged 49 years Subbarayanapete Chickballapur Taluk Kolar District - 562101

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…Respondent

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(By Sri. S.V.Shastry, Advocate)

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This RSA is filed u/S 100 of CPC., against the judgment and decree dated:5.9.2006 passed in R.A.No.42/2003 on the file of the Civil Judge (Sr.Dn.) & JMFC, Chickballapur, dismissing the appeal and confirming the judgment and decree dated:4.1.2003 passed in

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O.S.No.190/1999 on the file of the Addl. Civil Judge (Jr.Dn.) & JMFC, Chickballapur.

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This RSA Coming on for further hearing this day, the Court delivered the following:

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JUDGMENT

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This regular second appeal is directed against the judgment and decree passed in R.A.No.42/2003 dated 05.09.2006, wherein, the learned Appellate Judge dismissed the appeal and confirmed the judgment and decree passed in O.S.No.190/1999 under which the suit of the plaintiff was decreed and the operative portion of the judgment passed in regular appeal reads as follows:

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“In view of the above discussion in respect of Ex.D6 to D13 and the evidence of PWs1 and 2, it has become clear that defendant has not been in actual possession & enjoyment of the suit land as on the date of the filing of the suit. The plaintiff has produced R.T.C extracts from 1968 -69 upto 1975-76 as per Ex.P6 and 7 and from the year 1998-99 to 2000-01 which clearly show that since from 1968 to 1975-76, the father of the plaintiff was in possession of suit land

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and since from 1998, the plaintiff has been in possession & enjoyment of the suit land. Under these circumstances it has become clear that the trial court has come to the proper and correct conclusion and the judgment and decree of the trial court, cannot be interfered with in this appeal. Accordingly, I answer point No.1 in the negative.

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18. Point No.2 : In the result, I proceed to passed the following:

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ORDER

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The appeal filed by the appellant

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is hereby dismissed.

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No order as to costs.

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The judgment and decree of the

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trial Court is hereby confirmed.

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Send back the records to the

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trial Court.”

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Being aggrieved by the said judgment and

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decree passed in R.A.No.42/2003, the appellant – Munishamappa has preferred this Regular Second

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Appeal under Section 100 of Code of Civil Procedure before this Court.

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In order to avoid confusion and overlapping

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the parties are referred in accordance with their ranks as held before the trial Court.

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Originally, one V.N.Nagaraju S/o. late Narayanaswamy V., filed O.S.No.190/1999 on 06.9.1999 seeking the relief of permanent injunction against the defendant – Munishamappa and the said suit came to be decreed. Being aggrieved by the same, the defendant – Munishamappa has preferred appeal in R.A.No.42/2003 and the said appeal came to be dismissed and finally, the defendant is in this regular second appeal.

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The substantial question of law framed by this Court on 18.11.2010 is as under:

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“Whether both the courts below have erred in law in ignoring the legal effect of the sale deed -Ex.D-5 executed by the plaintiff’s father in favour of one Pillamuniyamma and the admission of P.W.1(plaintiff) to the effect that his father had sold the entire suit schedule property in favour of the said Pillamuniyamma?”

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Additional question of law is as under:

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“Whether the title of Pillamuniyamma what she acquired from Narayanaswamy from the registered sale deed dated 26.05.1975 is lost by virtue of the compromise in O.S.No.11/2001?”

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The claim of the plaintiff in brief is that he claims to be the absolute owner in possession and enjoyment of the suit schedule property having inherited the same through succession. The plaintiff’s father – late Sri. Naryanaswamy purchased the suit

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schedule property under two different registered sale deeds dated 19.11.1968 and 2.12.1968 from its original owners. The khatha and other relevant records are standing in the name of plaintiff. He inherited the same from his father and defendant is totally right less and the plaintiff has been in actual possession and enjoyment of the suit schedule property.

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The defendant opposed the claim of the plaintiff and denied the plaint averments and contended that no doubt, the father of the plaintiff – Naryanaswamy had purchased the suit schedule property under two different registered sale deeds dated 19.11.1968 and 02.12.1968 from its original owners. But he never entered into possession of the suit schedule property. It is further contended that whatever the property that was purchased by late Sri.Narayanaswamy – father of the plaintiff was sold

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by him in favour of one Smt. Pillamuniyamma W/o. Sri. Kemparaju under the registered sale deed dated 26.05.1975. Thereafter, the defendant entered into sale agreement to purchase the entire property from the original owners of the land under the sale agreement dated 26.03.1986 for a cash consideration of Rs.20,000/- and in lieu of part performance of the contract, the defendant entered into possession of the suit schedule property. Thus, the defendant took the stand that i) Narayanaswamy did not enter into possession of the suit schedule property; ii) the defendant agreed to purchase the same from original owners.

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It is also contended by the defendant that plaintiff got changed the mutation in his favour based upon the regrant order dated 30.06.98 and the necessary revenue entries were effected in favour of the plaintiff. The said order of the Tahsildar made in

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favour of the plaintiff in respect of the suit schedule property was challenged by Smt.Pillamuniyamma in R.A.No.223/1999-2000, wherein the order of Tahsildar

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in favour of the plaintiff was stayed. The plaintiff who claims under his father – Sri Narayanaswamy did not come up with full material facts, more particularly, the fact of selling the schedule property in favour of Smt. Pillamuniyamma was suppressed. The registered sale deeds executed in favour of Sri Naryanaswamy - father of the plaintiff were marked as Exs.P1 and P2. The registered sale deed stated to have been executed by Sri Naryanaswamy in favour of Smt. Pillamuniyamma as per the written statement marked as Ex.D5 dated 26.05.1975.

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The revenue entry made in favour of the plaintiff by Tahsildar is produced at Ex.D28. The order of the Assistant Commissioner in R.A.No.223/99-2000 staying the order of the Tahsildar is at Ex.D1.

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Further details regarding certain

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proceedings to be mentioned at this stage itself are that Tahsildar re-granted the schedule property to the original holder (Hanumantharayappa) on 31.05.1983.

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In the peculiar facts and circumstances of the case, there has been several litigations both under judicial and revenue. Apart from the revenue proceedings stated above, O.S.No.190/1999 was filed by the plaintiff for permanent injunction is subject matter of the present appeal and the said suit filed by the plaintiff was decreed by the trial Court and affirmed by the First Appellate Court.

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There is no dispute between the parties as reflected from the records and the schedule property originally belonged to ‘holder of office’ under the Karnataka Village Offices Abolition Act, 1961 .

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The senior most person who comes for reckoning as

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the ‘holder of office’ is one Hanumantharayappa. It is admitted that the said property was sold by ‘holder’ with imperfect rights in favour of one Narayanaswamy under two registered sale deeds dated 19.11.1968 and 02.12.1968. The plaintiff is none other than the

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son of said Narayanaswamy, who had acquired the title from the ‘holders of the Office’. At this stage, it is necessary to analyze the sale and the effect of sale of granted land under the Karnataka Village Officers Inam Abolition Act . On the date of the sale of the suit schedule property, the ‘holder of the office’ (seller) admittedly was not the absolute owner of the schedule property, but he was only an occupant of the same, of course, with features being qualified for grant of suit schedule property. In this connection, the father of the plaintiff – Narayanaswamy upon his death was succeeded by the present plaintiff – V.N.Nagaraju. The plaintiff would rely on the legal principle as upheld

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by this Court in the case of Syed Bhasheer Ahamed and others Vs. State of Karnataka - ILR 1994 KAR 159 , wherein, it is held that transfer of Inam land between 01.02.1963 and 07.08.1978 by a holder or unauthorized holder before the land can be re-granted is not valid because the holder has vested right in getting the land re-granted in his favour. As such, there cannot be a bar for sale, regard being had to the fact of imperfect title. However, when the land is re-granted to the holder, the benefits of re-grant would enure in favour of the purchaser. Of course, earlier this principle was recognized by Hon’ble Apex Court in the case of Lakshmangowda Vs. State of

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Karnataka reported in ILR 1980 Kar 892 {(1981)1 KLJ 1} and by this Court and in this connection, it is necessary to mention head note of the judgment of Full Bench of this Court which reads as follows:

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“KARNATAKA VILLAGE OFFICES ABOLITION ACT, 1961

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(Karnataka Act No.14 of 1961) AS AMENDED BY ACT NO.13 OF 1978 – Sections 5, 6, 7 & 7A – Conspectus of provisions – Allenation of regranted Service Inam Land during 1.2.1963 to 7.8.1978 valid: not disentitled to regrant: allenee person with imperfect title entitled to continue in possession & get the benefit of regrant to allenor – Date of re-grant whether before or after 7.8.1978 not relevant to determine validity of allenation between 1.2.1963 & 7.8.1978 – No re-grant to allenee in his own name – No provision to evict allenee under allenation made between 1.2.1963 & 7.8.1978, Section 7 inapplicable, such allenee not ‘unauthorised holder’.”

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At the first sight, though, it tells that the father of the plaintiff and the plaintiff had the benefit of said judgment and the effect of the matter is under the registered sale deed dated 26.05.1975, the said

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Naryanaswamy father of the plaintiff sold away the

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suit schedule property in favour of Smt.Pillamuniyamma. Here the question and contention is that Smt.Pillamuniayamma never received the possession of the suit schedule property by virtue of the said sale deed and it continued to be remained with the plaintiff’s father and thereafter with plaintiff. However, the sale deed executed by the late Sri.Narayanaswamy in favour of Smt. Pillamuniyamma is not disputed, but the contention is the terms of sale deed and the ingredients of sale did not happen and Smt.Pillamuniyamma was never put into possession of the suit schedule property.

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Section 91 and 92 of the Evidence Act are as under:

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Evidence of terms of contracts, grants and other dispositions of property reduced to form of

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documents .—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

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Exclusion of evidence of oral agreement .—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting,

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varying, adding to, or subtracting from, its terms:

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Proviso (1) .—Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law:

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Proviso (2).—The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

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Proviso (3).—The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:

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Proviso (4).—The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:

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Proviso (5).—Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

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Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:

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Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts.”

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The said provisions of law acts against the contention and excludes the oral contention.

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The term ‘Purchaser’ in a sale deed

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includes the person claiming under him. It invariably covers that the person claiming under him stands in the shoes of the purchaser. As such, whatever the possession vests with Narayanaswamy got transferred to Smt.Pillamuniyamma.

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The defendant entered into a sale agreement with the holder of office for cash consideration of Rs.20,000/under the sale agreement dated 26.03.1986 and they claim that they entered into possession of the suit schedule property under the sale agreement in part performance of the contract and are entitled to the benefit of Section 53(A) of the Transfer of Property Act, which reads as under:

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“53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by

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him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2 ***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for

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consideration who has no notice of the contract or of the part performance thereof.”

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When the above being the state of affairs,

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it is the time, when the parties go for further litigation. Among them first one is O.S.No.11/2001 which is the original suit filed by Smt. Pillamuniyamma against the defendant - Munishamappa. Ex.D20 is the final decree proceedings which is written on nonjudicial stamp paper of Rs.500/- wherein it reveals that the proceedings of the decree which is written as final decree in O.S.No.11/2001, it is necessary to cull out the proceedings of the same which is marked as Ex.D20:

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“Claim:The plaintiff prays for judgment and decree for the following reliefs:-

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a) Declaring that the plaintiff is entitled to the vacant possession of the suit schedule land coupled with a direction to the defendant to deliver back the

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vacant possession of the same to the plaintiff by vacating and handing over the vacant possession of the same.

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b) To restrain the defendant from putting up structure on the suit schedule land by a judgment and decree of permanent injunction.

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c) To grant such other reliefs.

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This suit coming on this day for final disposal before Sri. CHANDRAMALLE GOWDA, B.Sc., LL.B., Civil Judge (Sr.Dn.) & JMFC., Chickballapur, in the presence of Sri. M.S.Ananda and Sri.B.M.Byregowda, Advocates fro the plaintiff and of Sri.J.K.Rajagopala, Advocate for the defendant.

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The G.P.A holder of the plaintiff and defendant have filed compromise petition u/o 23 rule 3 of C.P.C. In view of the compromise petition field by the both parties this suit is decreed. The terms and conditions of compromise petition is as follows:-

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1. It is submitted that the plaintiff and the defendant have reached an under-standing and pursuant to that the plaintiff concedes the

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contention of the defendant that he by having been in uninterrupted possession and enjoyment of the suit schedule lands he has perfected his title by adverse possession.

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2. The plaintiff under-takes that he will not interfere with the peaceful possession and enjoyment of the suit schedule land of the plaintiff.

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It is ordered and decreed that the defendant is in possession of the schedule property.

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Further it is ordered and decreed that the parties are directed to bear their own costs.

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Given under my hand and the seal of this court, this the 2^nd June of 2001.”

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The plaintiffSmt. Pillamuniyamma conceded to the possession and title of the defendant,

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the decree is written on non-judicial stamp paper of Rs.500/-. Further the date of decree was 02.06.2001

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and the said decree conferring the title in favour of

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the defendant - Munishamappa is neither challenged nor has been subject matter of any other proceedings wherein, the terms of the same get altered. May be it is the tacit understanding between the defendant – Munishamappa and Smt. Pillamuniyamma, but one thing is certain that whatever the rights, Sri.Narayanaswamy had acquired under the sale deeds as per Exs.P1 and P2 was conveyed to Smt.Pillamuniyamma and she in turn had conveyed to defendant – Munishamappa under Ex.D20, may be it was in a court proceedings. Insofar Ex.D20 is concerned, it was between the defendant - Munishamappa and the plaintiff – Pillamuniyamma, which places the defendant-Munishamappa in a better position over the plaintiff.

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The next look out would be in respect of O.S.No.121/2001 and it is a document produced at page No.95 of the original records. However, it is a

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court proceedings, copy of the same is made available, which is the suit filed by the plaintiff – Sri.V.N.Nagaraju against Smt.Pillamuniyamma in

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respect of the suit schedule property for the relief of declaration and permanent injunction and the said suit

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came to be decreed by the learned Principal Civil Judge (Jr.Dn.) and JMFC, Chikkaballapura on 24.08.2002. It was the suit filed on 26.06.2001. In

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this case the defendant – Pillamuniyamma except filing the written statement and denying the suit claim, she did not contest the suit and the said suit came to be decreed on 24.08.2002. The cumulative effect of the case would be whether Pillamuniyamma had title, possession or reminiscent of either of them to convey the suit schedule property in favour of plaintiff-V.N.Nagaraju, in the light of the proceedings and decree in O.S.No.11/2001, wherein she flatly concede in favour of the defendant – Munishamappa.

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It is necessary to make a mention of sale agreement dated 26.03.1986, wherein, the defendantMunishamappa agreed to purchase the suit schedule property for sale consideration of Rs.20,000/- from the holders of Village Office which is marked as Ex.D4 which is almost un-consequential in the circumstances of the case and for the following reasons:

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1. The original holder of the Village Office sold the suit schedule property to Narayanaswamy who is the father of plaintiff under two registered sale deeds as per Exs.P1 and P2.

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1. Sri Narayanaswamy sold the same to Smt.Pillamuniyamma under the sale deed dated 26.05.1975, thus, by virtue of the judgment in ILR 1994 KAR 159 , the holder Hanumantharayappa or his

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legal heir or purchaser Narayanaswamy were left nothing with suit schedule property.

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Insofar as the revenue entries made in favour of father of the plaintiff - Narayanaswamy originally was on the basis of registered sale deeds – Exs.P1 and P2 that was executed in favour of Narayanaswamy by Village Officer and later the plaintiff succeeded to the same from his father Narayanaswamy. Meanwhile, the title of Narayanaswamy got exhausted as it was sold to Pillamuniyamma and thereby, there is nothing left for plaintiff to inherit from his father – Naryanaswamy. The aforesaid judgment favours purchasers of the suit schedule property between

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the period from 01.02.1963 and

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07.08.1978. In this connection, the real beneficiary is Smt.Pillamuniyamma who incidentally gave away her right in Court proceedings in favour of defendant – Munishamappa who is the appellant herein. As she conceded to the claim of the defendant and as she entered compromise with defendant, all right, title and interest of Pillamuniyamma went in favour of defendant.

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Accordingly, I answer the substantial questions of law.

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[ For the reasons morefully stated and discussed above, I find both the trial court and appellate court seriously failed to understand the scope of the effect of grant of land –schedule property or legal effect of

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sale deed in favour of Smt.Pillamuniyamma by Narayanaswamy and cumulative effect of the decree in O.S.No.11/2001. I find both the Judgment and decrees are liable to be set aside by allowing the appeal.

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Hence, I proceed to pass the following:

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ORDER

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Appeal is allowed. Consequently Judgment and decree dated 05.09.2006 passed by the appellate court dismissing the appeal in R.A.No.42/2003 is set aside. Further the Judgment and decree dated 04.01.2003 passed in O.S.No.190/99 is also set aside.

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Suit of the plaintiff in the result is dismissed.

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No order as to costs.

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HJ/SBN

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Sd/JUDGE

Munishamappa S/O Late Narayanappa v. Sri v N Nagaraju S/O Late Narayanaswamy

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Munishamappa S/O Late Narayanappa v. Sri v N Nagaraju S/O Late Narayanaswamy

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