Dismissed

Dr. Navin C v. Sri H Lankappa

Karnataka HC8 Sept 2021MFA/374/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed appeals filed by a buyer challenging the rejection of his applications for temporary injunction and stay. The Court held that the vendor, a housing cooperative society, lacked title to the land due to failure in land acquisition, rendering the sale deed void and depriving the appellant of any title.

What did the court decide?

Appeals dismissed. The appellant was held to have no right, title, or interest in the suit schedule property.

Dr. Navin C Vs Sri H Lankappa — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER 2021

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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M. F. A. NO.5229 OF 2020 (CPC)

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C/W

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M. F. A. NO.374 OF 2021 (CPC)

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IN MFA NO.5229/2020

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BETWEEN:

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DR. NAVIN C. AGED ABOUT 66 YEARS S/O LATE CHANNEGOWDA R/A No.37/4/18, GANGADHARA LAYOUT OFF: NAGARABHAVI MAIN ROAD VIJAYANAGAR BENGALURU - 560040 REP. BY GPA HOLDER SRI. K. C. VENKATESHA

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...APPELLANT

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(BY SRI. Y K NARAYANA SHARMA, ADV.)

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AND:

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SRI. H. LANKAPPA AGED ABOUT 84 YEARS, S/O LATE HANUMANTHAPPA

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SMT NANJAMMA AGED ABOUT 77 YEARS, W/O SRI H LANKAPPA

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BOTH 1 AND 2 EARLIER R/A NO 46 NEW COLONY, AVALAHALLI, GEF POST, MYSORE ROAD, BENGALURU BOTH 1 AND 2 NOW R/A NO.191 7^TH ‘A’ MAIN, 18^TH CROSS, 3^RD BLOCK 4^TH STAGE, BASAVA PARK BASAVESHWARANAGARA BENGALURU - 560 079

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SMT MANGALA GOWRI AGED ABOUT 58 YEARS D/O SRI BOGASIDDAIAH W/O SRI SUNDARE GOWDA R/A NO.54, ‘ANUGRAHA’ M C SEETHARAMAIAH ROAD 3^RD CROSS, GAVIPURAM BENGALURU - 560 019

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…RESPONDENTS

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(BY SRI. SATHISH M. DODDAMANI, ADV. FOR C/R1 & R2 SRI. THONTADHARYA R. K., ADV. FOR R3)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 16.10.2020, PASSED ON I.ANO.1 IN OS.NO.2917/2020 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU [CCH NO.28], DISMISSING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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IN MFA NO.374/2021

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BETWEEN:

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DR. NAVIN C. AGED ABOUT 66 YEARS S/O LATE CHANNEGOWDA R/A No.37/4/18, GANGADHARA LAYOUT

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OFF: NAGARABHAVI MAIN ROAD VIJAYANAGAR BENGALURU – 560040 REP. BY GPA HOLDER SRI. K. C. VENKATESHA

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...APPELLANT

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(BY SRI. Y K NARAYANA SHARMA, ADV.)

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AND:

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SRI. H. LANKAPPA AGED ABOUT 84 YEARS, S/O LATE HANUMANTHAPPA

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SMT NANJAMMA AGED ABOUT 77 YEARS, W/O SRI H LANKAPPA

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BOTH 1 AND 2 EARLIER R/A NO 46 NEW COLONY, AVALAHALLI, GEF POST, MYSORE ROAD, BENGALURU

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BOTH 1 AND 2 NOW R/A NO.191 7^TH ‘A’ MAIN, 18^TH CROSS, 3^RD BLOCK 4^TH STAGE, BASAVA PARK BASAVESHWARANAGARA BENGALURU - 560 079

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SMT MANGALA GOWRI AGED ABOUT 58 YEARS D/O SRI BOGASIDDAIAH W/O SRI SUNDARE GOWDA R/A NO.54, ‘ANUGRAHA’, M C SEETHARAMAIAH ROAD 3^RD CROSS, GAVIPURAM BENGALURU - 560 019

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…RESPONDENTS

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(BY SRI. SATHISH M. DODDAMANI, ADV. FOR C/R1 & R2 SRI. THONTADHARYA R. K., ADV. FOR R3)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 16.10.2020, PASSED ON I.A.NO.2 IN OS.NO.2917/2020 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU [CCH NO.28], DISMISSING I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.08.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant aggrieved by the order dated 16.10.2020, passed on I.A.Nos.1 and 2 in O.S.No.2917/2020

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by the XIV Addl. City Civil Judge, Bengaluru (CCH-28), has filed the present appeal.

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Brief facts leading rise to filing of this appeal are

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as under:

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The appellant filed a suit in O.S.No.2917/2020 against the respondents seeking relief of declaration that the appellant is the owner of the suit property and the judgment and decree dated 14.09.2000, passed in O.S.No.10086/1996

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and O.S.No.10087/1996 are not binding on the appellant

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and for permanent injunction restraining the respondents

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from interfering with the peaceful possession and enjoyment of the property by the appellant. In the said suit, the appellant filed two applications i.e., I.A.No.1, seeking for an order of temporary injunction restraining the respondents from interfering with the peaceful possession of suit schedule property pending disposal of the suit and filed I.A.No.2 for staying the judgment and decree dated 14.09.2000, passed in O.S.Nos.10086/1996 and 10087/1996 and Execution Case No.25053/2007 and 25054/2007, pending disposal of the suit. In support of I.A.No.1, appellant has filed an affidavit contending that the appellant is the owner of site No.811 situated in the layout formed by Vishwabharathi House Building Cooperative Society Ltd., in Sy.Nos.212 and 213 of Halegevaderahalli, Rajarajeshwarinagar, Kengeri Hobli, Bengaluru South Taluk. The said site has been sold by the said society in favour of the appellant under registered sale deed 13.03.1996 and since the date of purchase, the appellant has been in possession and enjoyment of the suit schedule property as a absolute owner. Respondent Nos.1

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and 2 on one hand and the respondent No.3 on the other, colluded with each other, entered into an agreement to sell the properties and fabricated certain documents. Further, based on the fabricated agreement to sell, the respondent No.3 filed suits in O.S.Nos.10087/1996 and 10086/1996 against respondent Nos.1 and 2. The respondent Nos.1 and 2 did not contest the said suits. The said suits came to be

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decreed vide judgment and decree dated 14.09.2000. Respondent No.3 filed an execution petition in Execution Nos.25053/2007 and 25054/2007 seeking execution of registered sale deed in respect of entire land in Sy.Nos.212 and 213 based on the aforesaid judgments and decrees. The said execution petitions are pending. The respondents are claiming right over Sy.No.212 and 213. Hence, the appellant is forced to file the instant suit and filed applications I.A.Nos.1 and 2.

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Respondent Nos.1 and 2 filed objections to the said applications contending that the applications filed by the

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appellant are not maintainable. It is further contended that respondent Nos.1 and 2 are the absolute owners of land in Sy.No.212 and 213, totally measuring 11 acres 6 guntas situated at Halegevaderahalli, Rajarajeshwarinagar, Kengeri Hobli, Bengaluru South Taluk, having purchased the same under registered sale deed dated 10.10.1984. After the execution of registered sale deeds in their favour, khatha is effected in their name. It is further contended that the appellant claims to be purchaser of suit schedule property from Vishwabharathi House Building Cooperative Society, Bengaluru. The said Society had approached the State Government for acquiring vast extent of land including Sy.No.212 and 213. The SLO has issued preliminary notification under Section 4(1) of the Land Acquisition Act. However, final notification under Section 6(1) was not issued. Hence the Society who is the vendor of the appellant filed a writ petition in W.P.No.18584/1989. The said writ petition came to be dismissed on the ground that 6(1) notification is not issued within time and accordingly writ

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petition came to be dismissed vide order dated 27.09.1996. Against the said order, the said Society preferred a writ appeal in W.A.No.8766/1996. The writ appeal came to be dismissed vide order dated 04.12.1996. It is contended that the Society who is the vendor of the appellant filed a suit in O.S.No.834/1996 for permanent injunction. During the pendency of the said suit, the Society filed an application seeking for an order of temporary injunction. The Trial Court rejected the said application. The said Society preferred an appeal in MFA No.1953/1999 before this Court. This Court vide order dated 28.05.1999, dismissed the appeal. The Trial Court decreed the suit filed by the Society in O.S.No.834/1996 vide judgment and decree dated 30.11.2009. Against the said judgment and decree, respondents filed appeals in RFA Nos.1351/2009 c/w 46/2010. This Court allowed the appeals. While allowing the appeals, this Court made an observation as to when the suit properties were conveyed in favour of the Society, and further observed that the transaction is illegal and incapable

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of enforcement in view of the provisions of Benami Transactions (Prohibition) Act, 1988. The Society aggrieved by the judgment passed in the aforesaid appeals, preferred a Special Leave Petition in SLP No.20309-20310 of 2015 before the Hon'ble Apex Court. The Hon'ble Apex Court disposed of the matter confirming the judgment rendered by this Court in the aforesaid appeals. It is further contended that the appellant has no right, title or interest over the suit schedule property. Hence, on these grounds, prays to dismiss the applications filed by the appellant.

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The Trial Court, after hearing the parties, passed an

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order rejecting the applications filed by the appellant. Hence these appeals.

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Heard learned counsel for the appellant and learned counsel for respondents.

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Learned counsel for the appellant submits that

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respondent Nos.1 and 2 purchased the lands under sale

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deed dated 10.10.1984. The respondent Nos.1 and 2 have executed a general power of attorney in favour of Vishwabharathi House Building Cooperative Society Ltd., on 23.08.1985. The said Society formed a layout and sold one of the site in favour of the appellant under registered sale deed dated 13.03.1996. Since from the date of sale, the appellant being the absolute owner is in possession and enjoyment of the said property. He further submits that the appellant got changed the khatha in her name in BBMP and paying regular tax. He further submits that the respondents having colluded with each other, got filed suits in O.S.No.10086/1996 and 10087/1996, for specific performance of contract. He further submits that the respondent Nos.1 and 2 did not contest the said suits. The Trial Court decreed the suit ex parte . The decree obtained in the said suits are collusive decree. He further submits that the title of the Society is not involved in the aforesaid suits. Hence, on these grounds, he prays to allow the appeals.

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Per contra, learned counsel for respondent Nos.1 and 2 submits that the appellant is claiming to be a purchaser of a site formed in Sy.No.212. He further submits that insofar as Sy.No.213 is concerned, respondent Nos.1 and 2 have already sold the said land to the third party under registered sale deed dated 09.02.2021 and purchaser is not impleaded. He further submits that respondent Nos.1 and 2 are the absolute owners under registered sale deed. Names of respondent Nos.1 and 2 are appearing in the RTC. He further submits that though the SLO has issued a preliminary notification under Section 4(1) of Land Acquisition Act in respect of the suit properties for the benefit of Vishwabharathi House Building Cooperative Society Ltd., the SLO has not issued final notification under Section 6(1). The said Society filed a writ petition in W.P.No.1854/1989. The said writ petition came to be dismissed by this Court and confirmed in Writ Appeal No.8766/1996. He further submits that the said Society has executed an indemnity bond on 18.07.1998. He further

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submits that the Society filed a suit in O.S.No.834/1996 for permanent injunction. In the said suit, an application was filed for grant of temporary injunction. The Trial Court rejected the said application and the Society filed an appeal in MFA No.1953/1989 and said appeal came to be dismissed. He further submits that said suit in O.S.No.834/1996 was decreed. Against the said judgment and decree, respondents filed an appeal in RFA Nos.1351/2009 c/w 46/2010. The said appeals were allowed. While allowing the appeals, this Court made it clear that the Society has no right, title or interest over Sy.No.212 and 213. He further submits that the Society has no right to alienate the sites formed in Sy.No.212 and 213 in favour of appellant. He further submits that the Society has not acquired any title in Sy.No.212 and 213. He submits that the Trial Court was justified in passing the impugned orders. Hence, on these grounds, he prays to dismiss the appeals.

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Learned counsel for the respondent No.3 submits that respondent No.3 is the owner of land in Sy.No.212 and respondent Nos.1 and 2 executed an agreement of sale in respect of Sy.No.212 and 213 and handed over the possession of entire lands to the respondent No.3. Respondent Nos.1 and 2 did not execute a registered sale deed as per the terms and conditions of agreement of sale. The respondent No.3 filed suits in O.S.No.10086/1999 and 10087/1999. In the said suits, the Society filed an application for impleading as a defendant. The said application came to be rejected. The said finding has attained finality. Neither the Society nor the person claiming under the Society, cannot say that they were not aware about the suit. He further submits that the appellant is guilty of suppression of material fact. He further submits that the Society has fought several litigations. He further submits that the relief sought by the appellant i.e., prayer No.3 was sought by the Society in O.S.No.6918/2017 and the said suit came to be dismissed and the present suit is hit

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by principles of res judicata . He further submits that the appellant has no right to seek the same relief as sought by his vendor. He further submits that the Society has executed a registered sale deed in favour of the appellant as a absolute owner, but not as a power of attorney holder. He further submits that the Society has played fraud on the purchasers. He further submits that similarly placed persons have filed a suit in O.S.No.8773/2019. The said suit came to be dismissed vide judgment dated 04.01.2020. Hence, prayed to dismiss the appeals.

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Perused the records and considered the submissions

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made by learned counsel for the parties.

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It is not in dispute that respondent Nos.1 and 2

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were the owners of land in Sy.No.212 and 213 and it is also not in dispute that the SLO has issued a preliminary notification under Section 4(1) of the Land Acquisition Act for the benefit of Vishwabharathi House Building Cooperative Society Ltd. The SLO has not issued final notification under

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Section 6(1) of the Land Acquisition Act. The said Society filed a writ petition in W.P.No.1854/1989. The said writ petition came to be dismissed by this Court vide order dated 27.08.1996. The said Society aggrieved by the order passed in the said writ petition, filed writ appeal in W.A.No.8766/1996. The Division Bench of this Court dismissed the writ appeal vide order dated 04.12.1996, and has withdrawn the amount deposited by them by executing an indemnity bond. The Society being the vendor of the appellant having failed in their attempt to acquire the land under the Land Acquisition Act, filed a suit in O.S.No. 834/1996, for permanent injunction. The said suit came to be decreed vide judgment and decree dated 30.11.2009. The respondents being aggrieved by the same, preferred appeals in RFA Nos.1351/2009 c/w 46/2010. This Court allowed the appeals filed by the respondents. However, this Court made it very clear that the Society has no right, title or interest over the property bearing Sy.No.212 and 213. The said Society aggrieved by the judgment passed in the

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aforesaid appeals approached the Hon’ble Supreme Court in Special Leave to Appeal (C) No.20309-20310 of 2015. The Hon'ble Apex Court dismissed the appeal and confirmed the judgment rendered by this Court in the aforesaid appeals. From the perusal of the judgment and decree passed in RFA, this Court has recorded a finding that the Society has no right, title or interest over the lands in Sy.No.212 and 213 When the Society has not acquired any right, title or interest over the lands in Sy.No.212 and 213, any sale deed executed by the Society is void. The appellant not acquired any right, title or interest in respect of the suit schedule property under registered sale deed dated 13.03.1996, executed by the Society.

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The respondents have produced copy of registered

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sale deed executed by the Society in favour of the appellant. From the perusal of the registered sale deed, the Society has executed registered sale deed as an absolute owner of lands in Sy.No.212 and 213, in favour of the appellant, but not as

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a power of attorney holder of respondent Nos.1 and 2. As observed above, the Society does not have a right, title or interest over the lands in Sy.No.212 and 213, as the Society itself has no such title over the suit schedule properties.

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The appellant has not acquired any title over the suit schedule properties as the vendors of the appellant have

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not acquired any title under the registered sale deeds executed by the Society.

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The respondents have produced copy of judgments wherein similarly placed persons like the

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appellant herein filed suits for declaration and injunction and the said suits came to be dismissed holding that the society

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had no right, title or interest over the lands in Sy.No.212 and 213. From the perusal of the said judgments, the Civil Court has dismissed the suits of similarly placed persons like the appellant. The Trial Court, after considering the material on record, has passed the impugned orders. I do not find

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any grounds to interfere with the impugned orders. Accordingly, the appeals are dismissed.

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SD/JUDGE

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Dr. Navin C v. Sri H Lankappa

Case brief

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Dr. Navin C v. Sri H Lankappa

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