Dismissed

Smt Ramakka v. Sri G G Vasanth

Karnataka HC15 Dec 2021MFA/950/2021

Case brief

AI extract

What is this about?

Plaintiffs-appellants, claiming succession to inam tenants, sued for declaration of title and injunction over the suit land and sought temporary injunction. Their applications were rejected. The High Court held the suit prima facie doubtful and vexatious, found no perversity in the discretionary order, and dismissed the appeal with costs.

What did the court decide?

Appeal dismissed with costs of Rs.1,00,000/- payable to respondent Nos.1 to 12 equally, to be deposited within one month.

Smt Ramakka Vs Sri G G Vasanth — Property and Title | Karnataka HC (2021)

¶1

M.F.A.No.950/2021

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 15^TH DAY OF DECEMBER 2021

¶5

BEFORE

¶6

THE HON’BLE MRS JUSTICE K.S.MUDAGAL

¶7

MISCELLANEOUS FIRST APPEAL NO.950/2021(CPC)

¶8

BETWEEN:

¶9

SMT RAMAKKA W/O LATE R.M. RAMANNA AGED ABOUT 73 YEARS R/AT NO.880, 17^TH MAIN ROAD

¶10

2^ND STAGE, KUMARASWAMY LAYOUT BENGALURU – 560 078

¶11

SMT R.LAKSHMAMMA

¶12

D/O LATE R.M. RAMANNA AGED ABOUT 49 YEARS R/AT NO.880, 17^TH MAIN ROAD 2^ND STAGE, KUMARASWAMY LAYOUT BENGALURU – 560 078

¶13

SMT SUSHEELA

¶14

D/O LATE R.M. RAMANNA AGED ABOUT 47 YEARS R/AT NO.880, 17^TH MAIN ROAD 2^ND STAGE, KUMARASWAMY LAYOUT BENGALURU – 560 078

¶15

SMT M.R.PRATIMA D/O LATE R.M. RAMANNA AGED ABOUT 41 YEARS R/AT NO.880, 17^TH MAIN ROAD

¶16

2^ND STAGE, KUMARASWAMY LAYOUT BENGALURU – 560 078

¶17

… APPELLANTS

¶18

(BY SRI.T.SESHAGIRI RAO, ADVOCATE FOR SRI.RAKESH B BHATT, ADVOCATE)

M.F.A.No.950/2021

AND:

SRI G.G. VASANTH S/O LATE GNANADEV G.N AGED ABOUT 67 YEARS R/AT NO.890, 2^ND FLOOR 4^TH CROSS, NAGARABHAVI 11^TH BLOCK, BENGALURU – 560 072 2. SRI G.G. RAVI S/O LATE GNANADEV G.N. AGED ABOUT 67 YEARS R/AT NO.20/2, KRISHNA NIVAS 8^TH CROSS, SANJIVINI NAGAR OPP. ST. XAVIER HIGH SCHOOL MUDALPALYA BENGALURU – 560 072

¶23

SRI G.G.RAMA S/O LATE GNANADEV G.N AGED ABOUT 63 YEARS R/AT NO.969, SOUNDARYA LAHARI 1^ST FLOOR, 20^TH MAIN JNANA BHARATI BLOCK-2 MARIYAPPANAPALYA BENGALURU – 560 056

¶24

SMT SAVITHRI BAI W/O LATE GNANADEV G.N AGE: MAJOR R/AT NO.890, 2^ND FLOOR 4^TH CROSS, NAGARABHAVI 11^TH BLOCK, BENGALURU – 560 072 5. SRI G.T. MANJUNATH S/O SRI THUKARAM G.N. AGED ABOUT 60 YEARS R/AT NO.763, 13^TH MAIN 50^TH CROSS, 3^RD BLOCK RAJAJINAGAR BENGALURU – 560 010

¶25

SRI G.T. SURYA PRAKASH S/O SRI G.N. THUKARAM AGED ABOUT 58 YEARS

¶26

M.F.A.No.950/2021

¶27

¶28

R/AT NO.763, 13^TH MAIN 50^TH CROSS, 3^RD BLOCK RAJAJINAGAR

¶29

BENGALURU – 560 010

¶30

SRI G.T. ARJUN S/O SRI G.N. THUKARAM AGED ABOUT 56 YEARS R/AT NO.763, 13^TH MAIN 50^TH CROSS, 3^RD BLOCK RAJAJINAGAR BENGALURU – 560 010

¶31

SRI G.T. AMARNATH S/O SRI G.N.THUKARAM AGED ABOUT 47 YEARS R/AT NO.763, 13^TH MAIN 50^TH CROSS, 3^RD BLOCK RAJAJINAGAR BENGALURU – 560 010

¶32

SMT. GANGUBAI W/O LATE G.N. THUKARAM AGED: MAJOR R/AT NO.763, 13^TH MAIN 50^TH CROSS, 3^RD BLOCK RAJAJINAGAR BENGALURU – 560 010

¶33

SRI G.S.PRAVEEN S/O LATE G.R.SACHIDANANDA AGED ABOUT 34 YEARS R/AT NO.74/A, 17^TH CROSS 4^TH BLOCK, 4^TH STAGE, WOC ROAD NEAR BASAVESHWARANAGAR POLICE STATION, BANGALORE NORTH BANGALORE – 560 079

¶34

SRI MANOJ S S/O LATE G.R. SACHIDANANDA AGED ABOUT 25 YEARS R/AT NO.74/A, 17^TH CROSS, 4^TH BLOCK 4^TH STAGE, WOC ROAD NEAR BASAVESHWARANAGAR POLICE STATION, BANGALORE NORTH

¶35

M.F.A.No.950/2021

¶36

¶37

BANGALORE – 560 079

¶38

SRI G.S. HARI S/O G.N. RAMACHANDRA AGED ABOUT 54 YEARS R/AT NO.74/A, 17^TH ‘A’ CROSS 4^TH BLOCK, 4^TH STAGE, WOC ROAD BASAVESHWARANAGARA POLICE STATION BANGALORE NORTH, BANGALORE – 560 079

¶39

SRI NARAYANA REDDY S/O LATE MUNISWAMY AGED ABOUT 65 YEARS R/AT HOUSE DOOR NO.1289 8^TH MAIN, 2^ND STAGE, MAHALAKSHMIPURA, W.O.C. ROAD BANGALORE – 560 086

¶40

M/S. OLETY CONSTRUCTION COMPANY A REGISTERED PARTNERSHIP FIRM HAVING ITS FIRM NO.GDN-F508/2019-20 AND HAVING ITS REGISTERED AND CORPORATE OFFICE AT: NO.56, 10^TH CROSS 2^ND MAIN, 2^ND STAGE, OFF WEST OF CHORD ROAD, MAHALAKSHMIPURAM BANGALORE – 560 086 REP. BY ITS MANAGING PARTNER MR. B.S. RAVINDRA … RESPONDENTS

¶41

(BY SRI.ARVIND KAMATH, SENIOR ADVOCATE FOR SRI.VAMSHI KRISHNA, ADVOCATE FOR R1 TO R12 AND C/R14; R13 – SERVED)

¶42

THIS MFA IS FILED UNDER SECTION 104 READ WITH ORDER XLIII RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 22.12.2020 PASSED ON I.A.Nos.1 AND 2 IN O.S.NO.3382/2020 ON THE FILE OF THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-61) REJECTING I.A.NOS.1 AND 2 FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC.

¶43

THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

M.F.A.No.950/2021

J U D G M E N T

Aggrieved by the rejection of their applications for injunction, the plaintiffs in O.S.No.3382/2020 have preferred the above appeal.

¶48

The subject matter of O.S.No.3382/2020 was land bearing Survey Nos.77/1, 77/2 and 77/3 of K.G.Agrahara, Dasarahalli, Yeshwanthapura Hobli, Bengaluru North Taluk in all measuring 3 acres 31 guntas.

¶49

The entire suit property formed part of land in Survey No.77 in all measuring 4 acres and 5 guntas. The said land was inam land. One B.K.Nagaraj was inamdar. One Gabadi Ramaiah was the tenant under B.K.Nagaraj. On the death of Gabadi Ramaiah his two wives by name Siddamma and Gundamma inherited his right of tenancy and continued as tenants.

¶50

Ramaiah were partitioned and in that partition the suit properties were allotted to the share of his wives

¶51

M.F.A.No.950/2021

¶52

¶53

Siddamma and Gundamma. During 1954, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (‘the Act 1954’) was enacted. The said Act came into force and received the assent of the President on 15.03.1955. Under the said the Act, all the personal and miscellaneous inams were abolished. By operation of Section 3 of the Act 1954 such lands vested with the Government. Section 5 of the Act 1954 provided for registration of tenants as occupants on certain conditions.

¶54

During 1959-1960 Siddamma and Gundamma

¶55

filed application for registration as occupants. Pending the said application on 17.07.1961 Siddamma sold her share of the property to one Papaiah. Similarly, on 28.06.1962, Gundamma sold her share to G.Nanjusa. On the same day Nanjusa purchased the other portion of the property from Papaiah under registered sale deed. On 14.08.1962, the Competent Authority granted occupancy rights to Siddamma and Gundamma as per Section 10 of the Act 1954.

¶56

M.F.A.No.950/2021

¶57

¶58

On 01.05.1965, Nanjusa got converted the property purchased by him for non agricultural use. Nanjusa had three sons by names Tukaram, Ramachandra and Gnanadev. Defendant Nos.1 to 4 are the wife and children of Gnanadev. Defendant Nos.5 to 9 are wife and children of Tukaram. Ramachandra had two sons by name G.S.Hari - defendant No.12 and Sachidananda. Sachidananda died. Defendant Nos.10 and 11 are the children of Sachidananda.

¶59

Under the registered release deed dated 08.05.1974, Tukaram, Ramachandra and Ganandev divided the subject matter of the suit amongst themselves. On such partition, the properties were subdivided and assigned Survey Nos.77/1, 77/2 and 77/3. On 23.05.1976 all sons of Nanjusa applied to Bangalore Development Authority for approval to develop the property into industrial layout for the purpose of establishing garments manufacturing industry.

¶60

Nanjusa died on 09.08.1982. Gundamma died on 23.11.1985. She had son by name Ramanna. The

¶61

M.F.A.No.950/2021

¶62

¶63

plaintiffs/appellants are wife and three children of Ramanna. According to the plaintiffs Ramanna is survived by three other children by name M.R.Jayalakshmi, M.R.Mahadeva and M.R.Murthy. Siddamma died issueless on 21.05.1994. On 25.04.1985 as per Annexures-R.26 and 27, BDA approved plan for establishing industrial shed over the suit schedule property.

¶64

Gnanadev and Ramachandra filed O.S.No.5875/1994 before XV Additional City Civil Judge, Bengaluru against the plaintiffs, one Siddaiah, Rajashekar and Sampath Kumar for permanent injunction in respect of the same subject matter. Plaintiff Nos.1 to 3 were defendant Nos.4, 7 and 8 in the said suit. The plaintiffs did not file written statement in the said suit. Defendant Nos.1 and 2 in the said suit alone filed written statement.

¶65

That suit came to be decreed on 25.06.1997 granting permanent injunction against the present plaintiffs and other defendants in the said suit or anybody claiming through them.

¶66

M.F.A.No.950/2021

¶67

¶68

The present plaintiff No.1 and her other sons Mahadev and Murthy filed R.F.A.No.283/2001 before this Court challenging the judgment and decree in O.S.No.5875/1994. Since there was inordinate delay in filing the appeal, the application for condonation of delay was filed in the appeal. This Court by judgment dated 19.03.2004 dismissed the said application and the appeal.

¶69

Perusal of the judgment in R.F.A.No.283/2001 shows that though the appellants therein admitted execution of power of attorney in favour of Siddappa defendant No.1 therein, contended that he did not update them about the proceedings in the case and did not represent their interest properly. The grounds for condonation of delay were also the same. However, this Court rejected the said contention and dismissed the application and the appeal.

¶70

In the year 2001 the appellants filed O.S.No.348/2001 against Gnanadev, Ramachandra and Tukaram the sons of Nanjusa for permanent injunction in respect of the very same property, but withdrew that.

¶71

M.F.A.No.950/2021

¶72

¶73

On 13.12.2002, the appellants and the other children of appellant No.1 filed O.S.No.8403/2002 against Gnanadev, Ramachandra and Tukaram, the sons of Nanjusa seeking declaration of their title and declaration that sale deeds dated 28.06.1962 and 14.12.1959 executed by Gundamma and Siddamma were null and void and the judgment in O.S.No.5875/1994 was null and void on account of fraud and misrepresentation and for permanent injunction in respect of the very same property. They failed to pay the Court fee in the said suit. Therefore, on 12.06.2012 the plaint in the said case came be rejected.

¶74

Pending O.S.No.8403/2002, on 28.09.2010 one Jagadish claiming to be descendant/legal representative of Gundamma and Siddamma initiated proceedings against the sons of Nanjusa under Prohibition of Transfer of Certain lands Act, 1978 (‘PTCL Act’ for short). He claimed that sales by Gundamma and Siddamma were violative of the provisions the said PTCL Act and sought restoration of the land to him. In those

¶75

M.F.A.No.950/2021

¶76

¶77

proceedings on 29.09.2010 the Assistant Commissioner took possession of the suit schedule properties from Nanjusa’s family.

¶78

The sons of Nanjusa challenged that order before this Court in W.P.No.31493-495/2010. This Court by order dated 30.09.2010 ordered for restoration of the possession to the sons of Nanjusa. In the course of the order, the act of the Assistant Commissioner was condemned. So far as the challenge to the proceedings, this Court directed the sons of Nanjusa to file an appeal before the Deputy Commissioner and disposed of the petition accordingly. On 05.10.2010 the possession of the land was restored to the sons of Nanjusa in compliance of the order of this Court in W.P.No.31493495/2010.

¶79

Aggrieved by the order in W.P.Nos.3149331495/2010, both parties preferred W.A.Nos.579581/2012 connected with W.A.Nos.449-451/2012. This Court by judgment dated 05.07.2013 allowed the appeals of the sons of Nanjusa and dismissed the appeal of

¶80

M.F.A.No.950/2021

¶81

¶82

Jagadish. The order of resumption of land passed by Assistant Commissioner was set aside.

¶83

Challenging the order passed in the writ appeals, Jagadish preferred Civil Appeal Nos.43674372/2016 before the Hon’ble Supreme Court. The Hon’ble Supreme Court by judgment dated 29.08.2019 dismissed the appeals confirming the judgment of the Division Bench of this Court in the writ appeals.

¶84

Thereafter on 07.02.2020, defendant Nos.1 to 12 who are heirs of sons of Nanjusa entered into joint development agreement with defendant No.14 conveying the developmental rights in the suit properties to him. Thereafter the appellants filed O.S.No.3382/2020 before LX Additional City Civil and Sessions Judge, Bengaluru against the respondents herein. In the suit they sought the following reliefs:

¶85

a) Declare that the plaintiffs are the absolute owners of the suit schedule properties being the successors of Smt.Gundamma and Smt.Siddamma pursuant to the grant of occupancy rights in their favour by the Special Deputy Commissioner for Abolition of Inams on 14.08.1962 and 14.08.1962 respectively.

¶86

M.F.A.No.950/2021

¶87

¶88

b) Declare that the Sale Deeds dated 28.06.1962 and 14.12.1959 allegedly executed by Smt.Gundamma and Smt.Siddamma respectively have extinguished in view of the provisions of Section 3 of the Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954.

¶89

c) Declare that the Judgment and Decree dated 25.06.1997 in O.S.No.5875/1994 passed by the Hon’ble XV Additional City Judge, Bangalore, is obtained by fraud and misrepresentation and nonest in the eye of law.

¶90

d) Declare that unregistered G.P.A dated 18.11.2002 which is created by 13^th defendant – Mr.Narayan Reddy in the name of plaintiffs in respect of the suit schedule property is illegal and fraudulent document.

¶91

e) Declare that the order passed in O.S.No.8403/2002 on the file of City Civil Court, filed by 13^th defendant-Mr.Narayan Reddy as G.P.A. Holder of plaintiffs on the basis of created and forged G.P.A., filed before this Hon’ble Court which was dismissed for nonpayment of court fee is not binding on the plaintiffs as the said suit filed without any authorization;

¶92

f) Declare that, the J.D.A. dated 07.02.2020, registered to Document No.5223/2019-20 and Deed of Amalgamation dated 07.02.2020, registered as Document No.5226/2019-20, and G.P.A. dated 07.02.2020, registered as Document No.227/2019-20 registered by defendant No.1 to 12 in favour of defendant No.14 in respect of suit schedule property is not binding on the plaintiffs;

¶93

g) Issue permanent injunction restraining the defendants, their servants, agents or any person/s claiming through or under them either individually or collectively in any capacity whatsoever from interfering with the peaceful possession and enjoyment of the suit Schedule properties or any portion in any manner whatsoever, including

¶94

M.F.A.No.950/2021

¶95

¶96

dispossession of the plaintiffs from the suit Schedule properties;

¶97

h) Issue permanent injunction restraining the defendants, their servants, agents or any person/s claiming through or under them from creating any third party interest in respect of the suit Schedule properties on the basis of created documents.

¶98

i) To grant such other further reliefs that this Hon’ble Court may deem fit and proper in the nature and circumstances of this case, including the cost of this proceedings, in the interest of justice.”

¶99

The grounds for seeking declaration of title, validity of the sale deeds in favour of Nanjusa were same as the defence in O.S.No.5875/1994 and grounds in O.S.No.8403/2002. So far as the judgment in O.S.No.5875/1994, it was contended that defendant No.1 in that suit played fraud on them and that the said judgment and decree was the outcome of fraud and misrepresentation. The very same grounds were urged in RFA No.283/2001 to challenge the judgment and decree in O.S.No.5875/1994. The grounds to seek condonation of delay in the appeal were also the same.

¶100

O.S.No.8403/2002 they contended that they have not

¶101

M.F.A.No.950/2021

¶102

¶103

executed any General power of attorney in favour of defendant No.13, forging such documents, he fraudulently filed the said suit and got that dismissed. Therefore they claim that said judgment is not binding on them. They also sought declaration that the joint development agreement dated 07.02.2020 and the power of attorney executed by defendant Nos.1 to 12 in favour of defendant No.14 do not bind them and seek permanent injunction from interfering with their peaceful possession and alienating the suit schedule properties.

¶104

In the suit, they filed I.A.Nos.1 and 2 seeking temporary injunction against the defendants from interfering with their peaceful possession and from alienating the suit schedule property. Defendant Nos.1 to 12 and 14 alone filed statement of objections and contested I.A.Nos.1 and 2.

¶105

The trial Court on hearing both side, by the impugned order rejected those applications holding that the plaintiffs have failed to make out prima-face case and the balance of convenience lies in favour of the contesting

¶106

M.F.A.No.950/2021

¶107

¶108

defendants. The trial Court also held that no irreparable injury will be caused to the plaintiffs if injunction is refused.

¶109

Sri T.Seshagiri Rao, learned Counsel for the appellant reiterating the grounds of appeal submits that since the lands were vested in the Government, the sale deeds executed by Siddamma and Gundamma were voidab-initio, t he plaintiffs/appellants deemed to have continued in possession. It is further contended that the judgment in O.S.No.5875/1994 and O.S.No.8403/2002 were the outcome of fraud, therefore do not bind the plaintiffs. The main contention of the learned Counsel for the appellants is that the trial Court having said that the contention of the appellants shall be decided on trial, was not justified in rejecting the prayer for injunction. So according to him, order is perverse and calls for interference.

¶110

In support of his contentions, he relies on the judgment of the Hon’ble Supreme Court in Ni.Pra

¶111

M.F.A.No.950/2021

¶112

¶113

Channabasava D.S. Matadhipathigalu and Kannada Mutt

¶114

vs. C.P.Kaveeramma and Ors.¹

¶115

Per contra, Sri Aravind Kamath, learned

¶116

Senior Counsel appearing for Sri Vamshi Krishna, learned Advocate on record for respondent Nos.1 to 12 and 14 referring to the history of entire litigation submits that the suit itself is highly vexatious. He submits that considering all the material on record, the trial Court exercised its discretion in sound manner to reject the applications. He submits that there is no scope for interference in such orders. Referring to Section 43 of the Transfer of Property Act, 1882 (‘TP Act’ for short) and relying on Full Bench judgment of this Court in Syed Basheer Ahamed vs. State of Karnataka² and the judgment of the Hon’ble Supreme Court in Venkateshappa vs. Munemma³ he submits that it is not open to the vendors or their successors to claim that the sale is void after occupancy rights were granted to the vendors.

¶117

1 (2009) 11 SCC 28

¶118

2 ILR 1994 KAR 159)

¶119

3 AIR 2016 SC 889

¶120

M.F.A.No.950/2021

¶121

¶122

The impugned order being discretionary order

¶123

under Order XXXIX Rules 1 and 2 of CPC, the same cannot be interfered by the Appellate Court, unless it is shown that the order suffers vice of perversity, arbitrariness or capriciousness. Non-consideration of the materials produced before it and non-adhering to the settled legal proposition regarding grant of injunction amounts to perversity, arbitrariness or capriciousness. As

¶124

per the settled principles of law in considering the application for injunction, the applicant has to satisfy the following conditions:

¶125

(i) He has prima-facie case. Prima-facie case means prima-facie case of his legal right and injury to such right.

¶126

(ii) The suit is not vexatious and there is case to

¶127

go for trial.

¶128

(iii) Balance of convenience lies in his favour. (iv) If temporary injunction is not granted, he is

¶129

likely to suffer irreparable injury.

¶130

v) He has approached the Court with clean hands and his conduct is not questionable.

¶131

M.F.A.No.950/2021

¶132

¶133

In the light of the aforesaid principles, this Court has to examine, ‘whether the impugned order is perverse, arbitrary or capricious ?”

¶134

Admittedly, the entire land bearing Survey No.77 measuring 4 acres 5 guntas were acquired by Gabadi Ramaiah under the partition deed dated 30.07.1947. The said land was inam land and Gabadi Ramanna was the tenant of the said land.

¶135

On his death, his wives Gundamma and Siddamma succeeded to the said property and got different shares. Siddamma sold her share to Papaiah on 17.07.1961. G.Nanjusa purchased that property from Papaiah and share of Gundamma from her under two registered sale deeds dated 28.06.1962. Siddamma and Gundamma did not challenge the said sale deeds during their lifetime nor the son of Gundamma i.e. husband of appellant No.1 and father of other appellants questioned that till his death on any of such ground. Even during the lifetime of Nanjusa, they did not challenge that.

¶136

M.F.A.No.950/2021

¶137

¶138

By the time of his death, Nanjusa had

¶139

developed the property and after his death, his sons started to further develop the property. At that stage, in the year 1994, for the first time, the appellants and their Power of Attorney holder Siddaiah started obstructing the possession of the sons of Nanjusa namely Tukaram, Ramachandra and Gnanadev. They filed O.S.No.5875/1994 for permanent injunction.

¶140

31 As already stated, by that time the partition was effected between the sons of Nanjusa. The appellants lost the litigation in O.S.No.5875/1994 as long back as on 25.06.1997 before the trial Court. Their appeal before this Court in RFA No.283/2001 also came to be dismissed on 19.03.2004.

¶141

In the plaint the appellants suppressed the facts of filing of RFA No.283/2001 and dismissal of the same. Suppressing that fact they made bald statement that the decree in O.S.No.5875/1994 was fraudulent one

¶142

and outcome of misrepresentation. Only during the course of arguments, an attempt is made to contend that

¶143

M.F.A.No.950/2021

¶144

¶145

the other defendants kept the appellants in darkness about those proceedings and played fraud. But reading of the judgment in RFA No.283/2001 shows that the appellants contended that defendant No.1 in that suit was General Power of Attorney holder and he did not inform them about the proceedings, therefore the appellants therein could not participate in the proceedings. Rejecting the said contentions, the appeal was dismissed. Apparently again the same plea is not open to the appellants in this case.

¶146

On losing the litigation in O.S.No.5875/1994, the appellants filed O.S.No.348/2001 against the sons of Nanjusa and withdrew that. Not being satisfied with that, they filed O.S.No.8403/2002 seeking the very same relief sought in the present suit. The present respondent No.13 was the Power of Attorney holder of the appellants and other plaintiffs in that suit. They did not pay the Court fee for about 10 years and ultimately the plaint in that suit was rejected on 12.06.2012. In this case, it is contended that the plaintiffs/appellants had not given Power of

¶147

M.F.A.No.950/2021

¶148

¶149

Attorney to respondent No.13 and he got the said document by colluding with the other respondents etc.

¶150

The documents produced before the trial

¶151

Court show that the said Power of Attorney was notarized Power of Attorney. Section 85 of the Indian Evidence Act, 1872 (‘the Evidence Act’ for short) states that the Court shall presume that such Power of Attorney has been executed and authenticated. Therefore the appellants should have placed some materials prima-facie to rebut such presumption.

¶152

The contesting respondents claimed that the appellants and respondent No.13 have colluded with each other and they filed the present suit. Interestingly, though the appellants made such wild allegations against respondent No.13, he does not appear to contest the suit. The appellants also have not placed any material to show that they have initiated any criminal action against him for the alleged forgery to deprive them of their property or to cheat them. In the plaint, the allegation of fraud is as bald as possible. Therefore, it cannot be said that any

¶153

M.F.A.No.950/2021

¶154

¶155

material to rebut the inference or presumption under Section 85 of the Evidence Act was placed.

¶156

After dragging the suit in O.S.No.8405/2002 for more than nine years, one Jagadish incarnates from nowhere claiming to be descendant of Gundamma and Siddamma, initiates the proceedings under the PTCL Act. He dragged the heirs of Nanjusa upto the Hon’ble Supreme Court till the dismissal of the Civil Appeal Nos.4367-4372/2016 and made them drain their resources in those proceedings. Ultimately, on he failing before the Hon’ble Supreme Court the appellants took another innings of litigation by filing O.S.No.3382/2020, the present litigation. Now it is sought to be contended that Jagadish was not a person known to the appellants and as they were not parties to those proceedings, no malafides can be imputed to them.

¶157

The sequence of events shows that from 1994

¶158

to 2020 for about 26 years the appellants entrapped the purchaser’s heirs in the web of multiple litigations. That too when the original owner that is predecessors of the

¶159

M.F.A.No.950/2021

¶160

¶161

appellants themselves did not question the sale deeds executed in favour of Nanjusa. Under the aforesaid facts and circumstances and inference of knowledge of the appellant’s of earlier proceedings, apart from the present suit being vexatious, the maintainability of the suit itself becomes doubtful. The doubt about the maintainability of the suit arises not only on the ground of limitation but on other aspects as well. Further the judgment in O.S.No.5875/1994 and the appeal arising therefrom leads to the inference that the appellants were not in possession of the property. On that count also, the doubt arises about the maintainability of the suit for declaration on the ground of limitation.

¶162

Section 43 of the TP Act which was sought to be pressed into service by Sri Aravind Kamath, learned Senior Counsel reads as follows:

¶163

“43. Transfer by unauthorised person who subsequently acquires interest in property transferred.— Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest

¶164

M.F.A.No.950/2021

¶165

¶166

which the transferor may acquire in such property at any time during which the contract of transfer subsists.

¶167

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”

¶168

39. Reading of the above provision shows that

¶169

once a person transfers the property erroneously representing that he is authorized to transfer the property and if later he acquires the property or any interest in the property, then he cannot claim that he had some disability in transferring the property at the time of transfer.

¶170

To rebut the contentions that the sale deeds

¶171

of 1962 in favour of Nanjusa were void, the appellants’ counsel contended that since the land is vested with the Government by virtue of Section 3 of the Act 1954, the sales were void. But, subsequent to the vesting of the land, it was regranted to Siddamma and Gundamma. In that context, Section 43 of the TP Act was pressed into service.

¶172

M.F.A.No.950/2021

¶173

¶174

The Hon’ble Supreme Court in

¶175

Venkateshappa’s case referred to supra, relied upon by Sri Aravind Kamath, learned Senior Counsel, while dealing with similar transaction which arose out of Karnataka Village Offices Abolition Act, 1961 held that the subsequent regrant in favour of the vendors enure to the benefit of the purchasers and the sale will not become void.

¶176

As against that, the appellants’ Counsel relied on the judgment in Kaveeramma’s case and contended that the respondents have not filed any written statement denying that Gundamma and Siddamma have sold the property representing to be the owners of the property, therefore question of consideration of Section 43 of the TP Act at this stage does not arise. It is no doubt true that in para 6 of the judgment, it was held that Section 43 of the TP Act applies only if transfer was under the erroneous representation. The copy of the sale deed executed by Gundamma and her son Ramanna in favour of Nanjusa which is under challenge is produced. That

¶177

M.F.A.No.950/2021

¶178

¶179

document shows that vendors represented to be owners of the property. 1959 sale deed said to be in favour of Papaiah is not placed on record. Nothing is produced to show that the same was produced before the trial Court. Therefore, it is not open to the appellants to claim that the vendors did not represent to be owners nor the defendants have taken such defence by filing written statement and Section 43 of the TP Act cannot be pressed into service.

¶180

So far as the judgment in Kaveeramma’s case arose out of Karnataka Certain Inams Abolition Act, 1977 and not under the Act 1954, which according to the appellants is not applicable. Further it was contended that under the Karnataka Village Offices Abolition Act regrant was on the basis of preexisting right of the inamdars and the same is not the case under the Act, 1954.

¶181

Perusal of the provision of the Act, 1954 shows that on coming into force of the said Act, by virtue of Section 3 of the said Act, 1954 the Inams land vested in the State. Section 5 enabled the permanent tenant of

¶182

M.F.A.No.950/2021

¶183

¶184

the Inamdar to apply for the grant of occupancy rights. That goes to show that preexisting right of the tenant were recognized. Therefore, there is no merit in the distinction tried to be made about the applicability of the judgment in Venkateshappa’s case referred to supra.

¶185

Apart from that reading of para 4 of Kaveeramma’s judgment shows that the transferrees cannot enforce their contractual rights against the Government after vesting. That does not speak about the third party purchasers. Therefore the said judgment cannot be justifiably applied to the facts of the present case.

¶186

Relying on the judgment of this Court in P.Ramiah Shetty and Ors. Vs, R.Nanjundaiah and others⁴ it is contended Section 43 of the TP Act does not apply. The reading of the said judgment shows that in that case sales were not effected by the grantees instead the sales were effected by the Government. The properties were auctioned by the Government for

4 MANU/KA/1075/2006

M.F.A.No.950/2021

recovery of the arrears of the land revenue and the auction purchaser had sold the land to other defendants. The sales in favour of those purchasers were questioned. Therefore, there is no merit in the contention that the said judgment bars the application of Section 43 of T.P.Act to this case.

¶191

The next contention of the learned counsel for

¶192

the appellant is that the trial Court having observed that all the contentions raised by the appellants have to be decided on full fledged trial, rejected the application. The said observation of the trial Court shows that the trial Court found a prima facie case, still dismissed the application. The trial Court in its reasoning on the prima facie case referred to all the aforesaid facts and found that the plaintiff’s case is doubtful. The observation of the trial Court that the contention shall be considered at the time of the trial is only inaccurate expression and not the finding that there is prima facie case. In any event the material on record sufficiently shows that the trial Court has sufficient basis to arrive at the conclusion that

¶193

M.F.A.No.950/2021

¶194

¶195

there is no prima facie case for the appellants. Therefore, that observation itself does not make the order perverse.

¶196

Having driven respondent Nos.1 to 12 for 26 years litigation on respondent No.14 entering into a joint Development Agreement, the appellants took one more chance to file the suit in question and sought injunction. Not being satisfied with that when they failed in their applications again they have come up before this Court in this appeal.

¶197

The sequence of events go to show that this is a classic case of unscrupulous litigants abusing the process of the Court and harassing the other side to see that ultimately they give up. Therefore this appeal is liable to be dismissed with heavy costs.

¶198

The appeal is dismissed with costs of Rs.1,00,000/- payable to respondent Nos.1 to 12 equally. The said costs shall be deposited within one month from the date of this order failing which the plaintiff shall not have the right of prosecuting the suit.

¶199

M.F.A.No.950/2021

¶200

¶201

The observations made during the course of this

¶202

order with regard to the merits of the case are limited to the consideration of this appeal.

¶203

Sd/JUDGE

¶204

KSR/akc