Dismissed

Sri C Gopal v. Sri D R Mruthunjaya Aradhya

Karnataka HC9 Nov 2021RFA/2243/2006

Case brief

AI extract

What is this about?

On a Regular First Appeal under Section 96 CPC against a decree for permanent injunction, this court held that the plaintiff's title was confirmed by a prior decree declared the Society's cancellation of the vendor's allotment invalid. The court dismissed the appeal, observing it was devoid of merit and integral to decide the title question.

What did the court decide?

Appeal dismissed with no order as to costs.

Sri C Gopal Vs Sri D R Mruthunjaya Aradhya — 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 9^TH DAY OF NOVEMBER, 2021

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BEFORE

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

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R.F.A NO.2243/2006

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BETWEEN:

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SRI C GOPAL ALIAS N SRIRAM SINCE DECEASED BY HIS LRs,

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A) SMT KANCHANA

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W/O LATE C GOPAL, ALIAS M SRIRAM AGED ABOUT 50 YEARS,

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B) SRI KUTTI,

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S/O LATE C GOPAL ALIAS M SRIRAM AGED ABOUT 35 YEARS,

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C) SRI SOMANNA,

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S/O LATE C GOPAL, ALIAS M SRIRAM AGED ABOUT 32 YEARS,

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(A,B & C ARE R/O NO.C-110, I MAIN 2^nd CROSS, ROBERTSON BLOCK RAMMOHANPURAM BANGALORE 21)

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D) SMT JAYANTHI, W/O LATE SRINIVASA D/O LATE C GOPAL, ALIAS M SRIRAM AGED ABOUT 38 YEARS, R/O NO.12/3, I MAIN 1^st CROSS, ROBERTSON BLOCK

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RAMMOHANPURAM BANGALORE 560021

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E) SMT TILAKAVATHI W/O SHANKAR D/O LATE C GOPAL, ALIAS M SRIRAM AGED ABOUT 36 YEARS, R/O NO.1/30, GOVINDAMODULIYAR STREET, DHARAPADAVEEDU KATPADI, TN- 632007.

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...APPELLANTS

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(BY SRI. VASUDEVAMURTHY N S, ADVOCATE)

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AND:

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SRI D R MRUTHUNJAYA ARADHYA S/O LATE RENUKACHARYA AGED ABOUT 63 YEARS NO.11-323, GUKULAM DODDAKALLASANDRA KANAKAPURA ROAD BANGALORE.

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...RESPONDENT

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(BY SRI. G SRIDHAR, FOR M/S INDUS LAW, ADVOCATES)

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THIS RFA IS FILED UNDER SECTION 96(1) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.07.2006 PASSED IN O.S.NO.11047/1996 ON THE FILE OF THE XIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, CCCH-22, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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JUDGMENT

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The appeal is directed against the judgment and decree passed by the learned XIII Additional City Civil Judge, Mayohall Unit, Bangalore, in O.S.No.11047/1996, wherein the suit of the plaintiff came to be decreed and the defendant was restrained from interfering with the possession and enjoyment of the schedule property which is stated to be a vacant site described as under:

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SCHEDULE

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Site bearing No.79, I phase of Kempapura Agrahara, Hosahalli Extension, Bangalore-40, measuring East-West:30 feet and North-South:50 feet, bounded on:

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East by	: Site No.80
West by	: Site No.78
North by	: 30 Feet Road
South by	: Site No.101

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In order to avoid confusion and overlapping, the parties are addressed in accordance with their ranks and status as stood before the Trial Court.

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The suit is for permanent injunction and the subject matter is a vacant site.

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The suit came to be decreed on 01.07.2006.

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Defendant filed the present appeal on 06.11.2006.

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In order to avoid wastage of judicial time, the facts of the case are extracted from the certified copy of the judgment in O.S.No.11047/1996 which reads as under:

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“It is the case of the plaintiff that he is the absolute owner in possession and enjoyment of the suit schedule property referred above, acquired under a Registered Sale Deed dated 22.11.1980. During the first week of December 1986, when he had gone to the suit schedule property, he was obstructed by few persons of Binny Mills Labour Association House Building Co-operative Society (herein after called as Society) and when he made enquiries with them

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as to why they were doing so, he was told that society has cancelled the Sale Deed of C.Janardhan Rao on 5.6.1981. He got issued a legal notice. Nothing was done. Therefore, he filed suit OS-10350/1987 for cancellation of the Deed dated 5.6.1981 and for injunction. Society having once sold and conveyed and put his (plaintiff) vendor’s vendor in possession of the suit schedule property, it cannot take away the rights accrued under the Sale Deed. Defendant is trying to interfere with his peaceful possession and enjoyment. During the second week of September-1996, defendant tried to obstruct. He applied for EC certificate and came to know that Society has executed Sale Deed on 9.4.1992 in favour of the defendant. Society has no right to do so. Defendant is a powerful and an influential person. He would oust him and in that event, he would be put to irreparable loss. Cause of action for the suit arose during the 2^nd week of September-1996 and there upon the present suit came to be filed for the above relief. Hence the suit.”

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The contentions of the defendant/appellant is

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that he was allotted suit schedule property from the

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Binny Mills Labour Association House Building Cooperative Society and the claim of the plaintiff that he purchased from its previous owner is not sustainable on the very ground that the vendor of the vendor of the plaintiff Mr.C.Janardhan Rao claiming to have got allotted a vacant site from Binny Mills Housing Society. However, the same was cancelled subsequently by the Society. By virtue of cancellation, there was no title or lawful possession to the vendor of the vendor of the plaintiff, as a result the very of the plaintiff was rightless in respect of schedule property so he could not have conveyed the property in favour of the plaintiff under the registered sale deed dated 22.11.1980.

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For the sake of convenience, the claim of the plaintiff is that he purchased the schedule property under the registered sale deed dated 22.11.1980 from one Noorulla Basha and Noorulla Basha purchased the

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schedule property from Mr.C.Janardhan Rao under registered sale deed dated 01.08.1974 prior to which Mr.C.Janardhan Rao, claims to have been allotted the schedule property on 11.03.1974.

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The learned Trial Judge based on the materials available framed the following issues:

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1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

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1. Whether Plaintiff proves that the defendant is interfering in his peaceful possession and enjoyment of the suit schedule property?

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1. Whether the plaintiff is entitled to the reliefs as prayed for?

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1. What decree or order?

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The Trial Judge was accommodated with oral evidence of PW1 D.R.Mruthunjaya Aradhya and DW1 C.Gopal and documentary evidence of Exs.P1 and P2-

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Certified copies of the sale deeds, Ex.P3-certified copy of the sale deed executed by the society in favour of

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C.Janardhan Rao, Ex.P4-certified copy of the Possession certificate, Ex.P5-cancellation deed, Ex.P6certified copy of the khata certificate, Exs.P7 to P9certified copies of the tax paid receipts, Exs.P10 and P11-two encumbrance certificates, Exs.P12 to P14 certified copy of agreement to sell, GPA and affidavit, Ex.P15-certified copy of the orders passed by the High

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Court in CRP-1796/97, Ex.P16-certified copy of the orders passed in OS-10350/1987 and Ex.P17-certified copy of the SLP on behalf of plaintiff and Ex.D1original pass book issued by Binny Mills Labour Association House Building Co-operative Society, Ex.D2-Receipt issued by the said society dated 8.4.1992, Ex.D3-certified copy of the sale deed dated 8.4.1992, Ex.D4- certificate issued by BMP, Ex.D5khata register extract issued by BMP, Ex.D6-Tax paid receipt issued by BMP and Ex.D7-certified copy of the

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orders passed in RFA-809/1997 on behalf of defendant.

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Upon conclusion of the trial, the suit of the plaintiff came to be decreed. Being aggrieved by the same, defendant has presented this appeal.

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Learned Counsel Sri Vasudevamurthy N.S., appearing for the defendant-appellant submitted that the learned Trial Judge erred in overlooking the legal title and bottled possession of the defendant over the schedule property. The defendant was validly allotted the schedule site by the Society under registered sale deed on 09.04.1992 and possession certificate was issued in his favour. The defendant is the absolute owner in possession of the schedule property. It was further submitted that the schedule property is carved out from a cluster of Survey numbers such as Sy.Nos.186, 189, 190 and 209 and he is in possession and enjoyment of the same.

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Learned Counsel would further submit that

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when there is no right and title of the plaintiff over the schedule property, there is no question of interference by the defendant and the apprehension of the plaintiff regarding interference is not well-founded. On the other hand, it is misconceived. It is also submitted that though in the sale deed Sy.No.467/1 is mentioned in favour of Janardhan Rao, the plaintiff is the purchaser from the purchaser of the purchaser from Mr.C.Janardhan Rao. The plaintiff who has purchased the schedule property from his vendor Noorulla Basha who had earlier purchased from Janardhan Rao has not mentioned the survey number with deliberate intention to mislead the Court and has mentioned only the site number. In other words, he wants to grab the schedule property. The plaintiff was not given possession certificate by the Society or the defendant.

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Sri G.Sridhar, learned Counsel for the plaintiff-respondent would submit that the plaintiff never lost his right, title, interest or possession over the schedule property.

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The valid title derived by the plaintiff was under the registered sale deed dated 22.11.1980 from Noorulla Basha and the title which Noorulla Basha derived was from his vendor Sri C.Janardhan Rao, under the registered sale deed dated 01.08.1974 remained intact.

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He further submitted that the said Janardhan Rao was allotted the site by the Binny Mill Society through a sale deed on 11.03.1974 which is produced as documentary evidence. It is further submitted that against the unilateral cancellation of the site by the Society, the plaintiff was compelled to file the original suit against the Society for declaration of cancellation as null and void in O.S.No.10350/1987.

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The said suit came to be decreed against which the Society preferred Regular First Appeal before this Court in RFA No.809/1997 and that came to be dismissed. Thus viewed from all practical and legal angles, the title and possession of the schedule property are kept intact in favour of the plaintiff.

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Learned Counsel for the plaintiff would further submit that the assertion of right by the plaintiff has been in respect of land in Sy.No.467/1 of Kempapura Agrahara, Hosahalli Extension, Bangalore40 and it is evidenced by the sale deed in favour of Sri C.Janardhan Rao also. Whereas the allotment made in favour of the plaintiff has been site No.79 carved out of Sy.No.186, 189, 190 and 209 from the layout formed by the BDA.

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Learned Counsel Sri G.Sridhar would further submit that in the first instance RFA No.809/1997 was allowed and the judgment and decree passed by the

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learned Trial Judge in O.S.No.10350/1987 was set aside through the judgment in RFA dated 15.04.1999 against which judgment, the plaintiff filed Special Leave Petition before the Hon’ble Supreme Court in SLP No.15646/1999 which was converted to Civil Appeal No.6425/1999 and the said Civil Appeal was allowed and the matter was remanded to this Court in the same Regular First Appeal in RFA No.809/1997 and on fresh adjudication, the appeal came to be dismissed on 13.04.2007 and it became final and binding.

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Following points are clear at this juncture:

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The site came to be purchased by the plaintiff under the registered sale deed dated 22.11.1980 marked as Ex.P1. This sale deed is stated to have been executed by one Sri Noorulla Basha in favour of the plaintiff.

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Earlier Noorulla Basha, the vendor of the plaintiff is stated to have purchased the schedule property from one Mr.C.Janardhan Rao under the registered sale deed dated 01.08.1974 marked as Ex.P2.

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The schedule property was sold to Sri C.Janardhan Rao by Binny Mill Housing Society under the registered sale deed dated 11.03.1974 under Ex.P3.

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The contention of the defendant is that

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possession certificate was not issued to Mr.C.Janardhan Rao by the Society.

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However, it is submitted that subsequent to sale, the possession certificate was issued by the Society. It is stated that Janardhan Rao was neither a member of the Society nor employee of Binny Mill Society and thus was not entitled for allotment of the schedule property and hence the Society cancelled the

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allotment thereby nullifying the claim of Janardhan Rao over the schedule property.

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As a result, persons claiming under Janardhan Rao whether Noorulla Basha or the plaintiff would be devoid of possessing the title or the possession over the schedule property.

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It is also seen from the judgment of the trial Court that in the remaining site there was a provision for the Society to sell the sites to the outsiders and treating them as associate members and hence it was sold. As such, it is not ignoring the right of a member and then allotting site to a non-member. Even otherwise, the plaintiff filed a suit for declaration and permanent injunction that was decreed against which Society preferred RFA under Section 96 CPC before this Court which was allowed in the first instance and later by virtue of setting aside of the judgment of this Court by the Supreme Court in Civil Appeal stated

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above, matter was remanded and in the second phase of proceedings, the appeal was dismissed.

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In the circumstances, even if it is assumed for a while that allotment was cancelled by the Society in respect of the site that was allotted to Janardhan Rao, the latest purchaser who is the plaintiff who purchased from Noorulla Basha, who had purchased from Janardhan Rao, filed a suit to declare that the cancellation order made by the Society is not binding on the plaintiff and by virtue of the said suit being decreed in favour of the plaintiff in O.S.No.10350/1987 the status-quo ante comes back and the title of the plaintiff over the schedule property gets confirmed and the intermediary embargo that was clouded gets lifted out.

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In the circumstances the Society even had executed a sale deed in favour of the defendant. But the former had no title to do so.

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Further, the contention of the defendant that Sy.No.467/1 is not mentioned in the plaint or the claim is confined only to Sy.No.467/1 by the plaintiff is not significant for the very reason that the layout was approved by the BDA and was sold by the Binny Mill Society to Janardhan Rao and it was cancelled later. Cancellation was held not binding on the plaintiff wherein the defect got cured. It is also the contention of the defendant that the site sold by the Binny Mill Society to the defendant is a different site altogether other than the one claimed by the plaintiff. If such being the case, the boundaries claimed by the defendant is not only similar but congruent to the boundaries stated in the plaint. Thus in either ways, the defendant fails to counter the claim and averments of the plaintiff. In this case, learned Counsel for the appellant filed I.A.No.2/2012 under Order 41 Rule 27 CPC for production of additional

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documents i.e., Layout plan and Resolutions issued by the BDA. It does not improve the status of the case of the defendant. Considering the reasons stated in the affidavit and in the interest of principles of natural justice, I.A.2/2012 is allowed. Perused the documents and they are taken on record.

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In the circumstances though it is a Regular First Appeal under Section 96 CPC, it also fails on question of law.

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The adjudication of a matter on substantial question of law is not only confined to Regular Second Appeal under Section 100 CPC, on the other hand, substantial question of law always has a predominant role in adjudicating the matter. If the defendant is banking on the cancellation of grant made in favour of Sri C.Janardhan Rao, it is to be noted that the plaintiff is not bound by such cancellation which is affirmed by decreeing the suit in O.S.No.10350/1987 confirmed in

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RFA No.809/1997. There is no occasion to interfere with the judgment and decree passed by the Trial Judge.

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The appeal is devoid of merits and is accordingly is dismissed .

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No order as to costs.

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In view of the disposal of the appeal, all other pending IAs do not survive for consideration and are accordingly disposed of.

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Sd/JUDGE

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JT/-

Sri C Gopal v. Sri D R Mruthunjaya Aradhya

Case brief

What is this about?

What did the court decide?

Sri C Gopal v. Sri D R Mruthunjaya Aradhya

Case brief

What is this about?

What did the court decide?

What the court decided

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