Dismissed

B O Thimmesh v. Smt. Shakunthalamma

Karnataka HC12 Jul 2021RSA/1292/2009

Case brief

AI extract

What is this about?

High Court of Karnataka disposed of two second appeals filed by an appellant purchaser challenging concurrent findings against him. The court confirmed the impugned judgments and decrees, holding the prior sale agreement was enforceable despite appellant's claim of collusion and limitation bars.

What did the court decide?

Confirmed judgments and decrees of lower courts, awarded refund of Rs.3,000 to appellant with interest at 18% p.a. and costs.

B O Thimmesh Vs Smt. Shakunthalamma — Contract and Commercial Disputes | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JULY, 2021

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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.1292/2009

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C.W.

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R.S.A.No.1293/2009(DEC & INJ)

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IN RSA No.1292/2009:

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BETWEEN:

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B O THIMMESH S/O ONKARAPPA AGED MAJOR

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R/AT MAVINAKATTE VILLAGE KASABA HOBLI, HOSADURGA TALUK CHITRADURGA – 577 560.

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...APPELLANT

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(BY SRI VEERENDRA PATIL, ADVOCATE)

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AND:

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SMT. SHAKUNTHALAMMA W/O RUDRASWAMY R/AT MAVINAKATTE VILLAGE KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT – 577 560.

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SOMASHEKARAPPA S/O UJJINAPPA, MAJOR R/AT. BEESANHALLY VILLAGE KASABA HOBLI, HOSADURGA TALUK,

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CHITRADURGA DISTRICT – 577 560.

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...RESPONDENTS

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(BY SMT. KALA DEEPA, FOR SRI G S PATIL, ADVOCATE FOR R1, R2 IS SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED 23.06.2009 PASSED IN R.A.No.51/2003 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), HOLALKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED:27.09.03 PASSED IN OS.No.156/2003 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, (JR. DN.), HOSADURGA.

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IN RSA No.1293/2009:

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BETWEEN:

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B O THIMMESH S/O ONKARAPPA AGED MAJOR R/AT MAVINAKATTE VILLAGE KASABA HOBLI, HOSADURGA TALUK CHITRADURGA – 577 560.

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...APPELLANT

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(BY SRI VEERENDRA PATIL, ADVOCATE)

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AND:

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SMT. SHAKUNTHALAMMA W/O RUDRASWAMY R/AT MAVINAKATTE VILLAGE KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT – 577 560.

¶29

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SOMASHEKARAPPA S/O UJJINAPPA, MAJOR R/AT. BEESANHALLY VILLAGE KASABA HOBLI, HOSADURGA TALUK, CHITRADURGA DISTRICT – 577 560.

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...RESPONDENTS

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(BY SMT. KALA DEEPA, FOR SRI G S PATIL, ADVOCATE FOR R1, R2 IS SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED 23.06.2009 PASSED IN R.A.No.45/2003 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), HOLALKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED:21.07.2006 PASSED IN OS.No.134/2004 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, (JR. DN.), HOSADURGA.

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two regular appeals are directed against

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the judgment and decree passed in respect of regular

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appeals morefully stated in the table below:

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Sl. No.	RSA No. filed by whom	RA No. filed by whom and DD and result	OS NO. filed by whom DD and result
1.	1292/2009 Plaintiff – B.O.Thimmesh	51/2003 filed by B.O.Thimmesh- Plaintiff appeal dismissed on 23-6-2009	156/2003 filed by B.O.Thimmesh plaintiff suit decreed in part on 27-9-2003

¶40

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1293/2009	RA 45/2006	134/2004
B.O.Thimmesh-	filed by B.O.	Shakunthala	mma
defendant No.2	Thimmesh	plaintiff	suit
	appeal	decreed on	21-7-
	dismissed on	2006
	23-6-2009

¶42

In order to avoid confusion and overlapping,

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the parties are referred in accordance with their title and status before the trial court.

¶44

R.A.No.51/2003 and RSA No.1292/2009) is filed by one B.O. Thimmesh, major son of Onkarappa for the relief of declaration to declare that the judgment and decree passed in O.S.No.186/2002 on 6-1-2003 in favour of Shakunthalamma and Somashekarappa is not binding him and for the relief of permanent injunction against defendant No.1.

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O.S.No.134/2004 (connected to RA

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No.45/2006 and R.S.A.No.1293/2009) is filed by Shakunthalamma against Somashekarappa and

¶47

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Thimmesh (plaintiff in OS No.156/2003) for the relief of declaration to declare that she is the owner of the suit property and to direct the defendants to deliver the possession of the suit property in her favour and that was decreed on 21-07-2006.

¶49

The appellant in both the regular second appeal is one B.O. Thimmesh who is the purchaser of the suit schedule property under the registered sale deed dated 12-08-2002 executed by Somashekarappa for a valuable consideration of Rs.3,000/-. The appeal is against the decree passed in O.S.No.134/2004 in favour of Shakunthalamma and dismissal of his suit in O.S.No.156/2003 in part. The cause title in both the suits is necessary to be mentioned and the same is as under:

¶50

In O.S.No.156/2003

Plaintiff:

B.O.Thimmesh

Defendants:

Smt. Shakunthalamma w/o. Rudraswamy

¶56

Somashekarappa s/o. Ujjanappa.

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In O.S.No.134/2004:

¶58

Plaintiff:

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Shakunthalamma w/o. Rudraswamy

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Defendants:

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Somashekharappa w/o. Ujjanappa;

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B.O. Thimmesh s/o. Onkarappa

¶63

The original suit O.S.No.156/2003 filed by

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Thimmesh was partly decreed, wherein the prayer for declaration of title was rejected and for injunction it was conditionally decreed. Similarly, suit filed by Shakunthalamma in O.S.No.134/2004 for declaration of title and possession is decreed.

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The substance of the case of the parties is

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that, ownership of the schedule property (vacant site) in favour of Somashekarappa on the given time is not

¶67

¶68

disputed either by B.O.Thimmesh or by

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Shakunthalamma.

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In the first suit in O.S.No.156/2003 plaintiffB.O.Thimmesh claims that he purchased the suit schedule property under the registered sale deed dated 12-08-2002 from Somashekarappa, defendant No.2. As defendant No.1- Shakunthalamma filed a suit for permanent injunction in O.S. No.85/2003 claiming that she purchased the schedule property from defendant No.1-Somashekarappa and also alleged interference by the defendants which was withdrawn by said Shakunthalamma, being alerted by the suit filed by Shakunthalamma/defendant No.1 that was subsequently withdrawn on 6-1-2003 he has filed the said suit. The plaintiff-B.O. Thimmesh also claims that there is perfect collusion between defendant No.1- Shakunthalamma and defendant No.2 Somashekarappa.

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It is the further case of the plaintiff-B.O. Thimmesh that sale agreement is stated to have been executed by defendant No.2 Somashekarappa on 6-92001 in favour of Shakunthalamma and she has filed a suit for specific performance against Somashekarappa in O.S.No.186/2002. In the said suit though the said Somashekarapa was set exparte in the beginning and subsequently, he placed appearance, but did not file written statement and suit was decreed in favour of Shakunthalamma.

¶73

Incidentally, the said Shakunthalamma filed execution petition in No.29/2003 and obtained registered sale deed dated 4-12-2003 from the court in respect of the schedule property as per the judgment and decree passed in OS No.186/2002.

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It is also stated that earlier, defendant No.1. agreed to sell the schedule property to one

¶75

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Shakunthalamma under the Sale agreement dated 6- 9-2012 for a consideration of Rs.5,000/-.

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It is submitted that the said agreement was barred by limitation and she filed a suit after the lapse of one year from the date of agreement and it created no rights in favour of Shakunthalamma and plaintiff and purchased the schedule property under the registered sale deed dated 12-8-2002 was absolutely entitled to buy the same through registered sale deed. Thus, he has sought for a declaration to declare that the judgment and decree passed in O.S.No.186/2003 is not binding him either in law or on facts. Thimmesh claim that he is the owner of the schedule property with absolute right. Insofar as defendant No.2-Somashekarappa is concerned, he did not contest the suit for the obvious reason that in O.S.No.134/2004 filed by Shakunthalamma, defendant No.1 is Somashekarappa and defendant

¶78

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No.2 is B.O.Thimmesh, wherein the said

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Shakunthalamma- plaintiff seeks declaration of title and recovery of possession.

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The contesting defendant in the said suit is defendant No.2 B.O.Thimmesh. However, defendant No.1 Somashekarappa duly contested the earlier suit filed by Shakuntalamma.

¶82

For the practical purpose, the written statement of defendant No.1 in O.S.No.156/2003 is equal to her claim in O.S.No.134/2004 and likewise, the claim of plaintiff –B.O. Thimmesh in O.S.No.156/2003 is equal to written statement of defendant No.2 in O.S.No.134/2004.

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The issues framed by learned trial judge in O.S.No.156/2003 and O.S.No.134/2004 are as under:

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¶85

In O.S.No.156/2003

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ISSUES

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“1. Whether the plaintiff proves that he is the owner of the suit property by virtue of registered sale deed dated 12/08/2002 executed by 2^nd defendant?

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Whether the plaintiff proves that he was in possession of the suit property as on the date of suit?

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Whether the plaintiff proves that the judgment and decree in O.S.No.186/2002 is not binding on the plaintiff and is liable to be cancelled?

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Whether the plaintiff proves that the defendants are interfering with his peaceful possession and enjoyment of the suit property?

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Whether the plaintiff is entitled for decree as prayed for?

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What order or decree?”

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In O.S.No.134/2004

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Whether the plaintiff proves that she is the owner of the suit property?

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Whether the plaintiff is entitled for possession of suit property from the defendants?

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Whether the plaintiff is entitled for decree as prayed for?

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What order or decree?”.

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The learned trial judge was accommodated

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with the following oral and documentary evidence:

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In O.S.No.156/2004

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Plaintiff:

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P.W.1 – B.O Thimmesha

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P.W.2 – G. Thippeshi P.W.3 – Nagendrappa P.W.4 - Venkatesha”

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EX.P-1 - Copy of Sale deed EX.P-2 - RTC EX.P-3 - C.C. of the Judgment and Decree in

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O.S.No.186/2

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EX.P-4 - Copy of Order sheet EX.P-5 - Copy of Order sheet in I.A.No.2 in O.S.No.85/2003.”

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Defendants:

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DW1-Shakunthalamma

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EX.D-1 - Copy of Court Summons EX.D-2 - C.C. of order sheet in O.S.No.186/2002 EX.D-3 - Copy of Notice EX.D-4 - Copy of Plaint in O.S.No.85/2003 EX.D-5 - Copy of Written Statement in O.S.No.85/2003 EX.D-6 - Office Copy of Ex . No.29/2003 EX.D-7 - Copy of Sale Deed”.

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In O.S.No.134/2004

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“ Plaintiff

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PW-1 – Shakunthalamma

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“EX.P-1 - Sale deed

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EX.P-2 - RTC copy EX.P-3 - Sale deed of defendant No.2 EX.P-4 - Copy of Judgment in

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OS.186/2002

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DW -1 : Thimmesh DW-2 : Somashekarappa

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Documents- NIL – “.

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Upon conclusion of the trial, learned trial

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Judge decreed O.S.No.156/2003, filed by B.O Thimmesh in part and decreed O.S.No.134/2004 filed by Shakunthalamma. Being aggrieved by the same, B.O.Thimmesh has preferred regular appeals before the first appellate court which are also came to be dismissed as mentioned above. Thus, these Regular Second Appeals are filed by B.O. Thimmesh, plaintiff in O.S.No.156/2004 and defendnat No.2 O.S.No.134/2004 who lost both the cases with concurrent finding.

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The Regular Second Appeals are admitted

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by this court on 26-3-2013 and on 8-4-2013 to consider the following substantial questions of law:

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RSA No. 1292/2009

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(1)Whether in the facts and circumstances of the case, the courts below were justified in holding that the judgment and decree passed in O.S.No.186/002 is binding on the plaintiff in view of the fact that the sale deed dated 12-8-2002 was executed in favour of the appellant by the 2^nd respondent before filing o.s.nO.186/2002?

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(2) Whether in the facts and circumstance of the case the courts below were justified in holding that the appellant is not the owner of the suit schedule property by virtue of the registered sale deed dated 12-8-2002?

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RSA No.1293/2009

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(1) Whether in the facts and circumstances of the case, the courts below were justified in decreeing the suit without considering whether the suit is hit by order 2 Rule 2 of CPC in view of withdrawal of O.S.No.85/2003?

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(2) Whether in the facts and circumstances of the case the prayer for recovery of possession can be made in view of the judgment in O.S.No.186/2003?

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Subsequently, both the appeals are clubbed on

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22-11-2013.

¶134

Learned counsel Mr.Veerabhadra Patil, for plaintiff–B.O.Thimmesh in O.S.No.156/2003 and defendant in O.S.No.134/2004 submits that Shakunthalamma, defendant No.1 can not get any right, title, interest over the suit schedule property and he is not bound by decree passed as it is a product of collusion and conspiracy and further it is based on the agreement which was not enforceable. The said Shakunthalamma, defendant No.1. in O.S.No.156/2003 and plaintiff in O.S.No.134/2004 earlier had filed suit in O.S.No.85/2003 which was withdrawn without assigning reasons and there is no right of liberty to file subsequent suit. However, she filed a suit for declaration of title and recovery of possession in O.S.No.134/2004. The said sale agreement is not binding on the plaintiff Thimmesh as

¶135

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it is a created and concocted document and brought into existence by two incompetent persons. The plaintiff – B.O. Thimmesh has constructed the house over the schedule property and he is a bonafide purchaser for a valuable consideration.

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Say of defendant No.1-Shakunthalamma in O.S.No.156/2003 is that plaintiff-B.O. Thimmesh has no right to get the registered sale deed in his favour. It is further submitted that even the sale deed was executed through the agency of court, it is not binding on the plaintiff as the suit for specific performance was filed with collusion by Shakunthalamma and actively co-operated by Somashekarappa.

¶138

Learned counsel Smt. Kaladeepa for Sri G.S.Patil respondent No.1/plaintiff submits that the said Smt.Shakunthalamma is defendant No.1 in O.S.No.156/2003 and plaintiff in O.S.No.134/2004.

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Learned counsel further submits that B.O. Thimmesh approached the court for the relief of declaration that the decree is not binding and for permanent injunction in O.S.No.156/2003. At the same time, she seeks the relief of declaration of title and recovery of possession in O.S.No.134/2004 which is filed against defendant No.1-Somashekaraiah and defendant No.2B.O.Thimmesh. She would further submits that B.O.Thimmesh cannot claim the decree passed in O.S.No.186/2002 is not binding on him as there was no impediment for the court to decree the suit. Further no flaw in capacity to contract or proceedings before the court is pleaded.

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The following additional substantial

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questions of law arise for consideration:

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(i) Whether the sale agreement dated 6-9-2001 by Somashekarappa in favour of Shakunthalamma for consideration of Rs.5,000/- wherein advance amount of

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Rs.3,500/- was paid with time period agreed upto 30-09-2001.

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(ii) Whether the plaintiff- B.O.Thimmesh falls within the meaning of the term, ‘Bonafide purchaser for a value’?

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The admitted facts regarding the happening

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of the events in the entire transaction are as under:

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“* Registered sale deed in favour of B.O. Thimmesh was executed on 12-08-2002 by Somashekharappa; the suit schedule vacant site was sold for a sale consideration of Rs.3,000/-; the suit for permanent injunction was filed by Shakunthalamma in O.S.No.85/2003 on the file of learned Civil Judge (Jr.Dn), Hosadurga, against Somashekarappa and another person. However, the said suit was dismissed as withdrawn on 28-52003; Shakunalamma had filed suit for specific performance in O.S.No.186/2002 on the file of Civil Judge (Jr.Dn) of the agreement dated 6-9-2001 in respect of the schedule property and the same was not contested by defendant seller Somashekarappa and the said suit came to be decreed on 6-1-2003.

¶150

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plaintiff-B.O. Thimmesh filed O.S.No.156/2003 for the relief of declaration to declare that the judgment and decree dated 6-1-2003 passed in O.S.No.186/2002 is not binding him and also sought for the relief of permanent injunction claiming that he has constructed a house over the suit schedule property.”

¶152

Insofar as the verdict of the trial court and the first appellate court through concurrent findings

¶153

are:

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“The relief for declaration of title of Smt. Shakunthalamma, plaintiff in O.S.No.134/2004 with possession came to be decreed on 27-1-2006 and the suit filed by B.O. Thimmesh in O.S.No.156/2003 came to be decreed in part holding that he is not entitled for declaration that the decree in O.S.No.186/2002 dated 6-1-2003 is not binding. However, his prayer for permanent injunction came to be granted conditionally till the defendant No.1-Shakunthalamma seeks possession under due course of law.

¶155

In the context and circumstances, if plaintiffB.O.Thimmesh in O.S.No.156/2003 held to be the bonafide purchaser of the schedule property in good faith for a valuable consideration and without notice of earlier agreement dated 6-9-2001 he succeeds. In case he is not the bonafide purchaser and the agreement was valid one, plaintiff in O.S.No.134/2004-Shakunthalamma would succeed.

¶156

¶157

Plaintiff-B.O.Thimmesh in the capacity of defendant No.2 in O.S.No.85/2003 has filed the written statement. It is necessary to clarify that the said suit was filed for the relief of permanent injunction by Shakunthalamma that was subsequently withdrawn.

¶158

Regard being had to the fact that the said suit was withdrawn by Shakunthalamma on 28-05-2003 in the said suit in the capacity of defendant No.2, Thimmesh pleads that he was aware of the existence of the sale agreement dated 6-9-2000 and filed on 30-09-2011 and the sale deed defendant No.2 Somashekarappa in favour of plaintiff was executed on 12-8-2001. However, the suit for specific performance was filed by Smt. Shakunthalamma on 7-10-2002 which is one year and 10 days after the expiry of the time fixed for specific performance.

¶159

¶160

On the contextual reading of Ex.D5,

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defendant No.2, Thimmesh in the said case specifically contends in his written statement regarding the date of execution of the sale agreement and the time period prescribed therein and the date of filing of the suit and what is pertinent to be noted from that is, he has not shown when exactly he came to know about the agreement. The said contentions may give different inferences to say whether he came to know about it only after the execution of sale deed in favour of Smt. Shakunthalamma. But the undisputable aspect of the same is, his defence is not to the effect that after the sale deed in favour of B.O. Thimmesh, sale agreement was concocted on an antedated stamp paper between Shakuntalamma as the purchaser and Somashekarappa as the seller.

¶162

¶163

Para No.4 of the plaint in O.S.No.156/2003 and para 10(a) of the written statement in O.S.No.134/2004 filed by defendant No.1-

¶164

Somashekharappa are as under:

¶165

“4. The defendant No.1 and 2 are strangers to the suit schedule property and are unnecessarily interfering with the peaceful possession and enjoyment of the suit schedule property enjoying by the plaintiff. An advice rendered in this behalf, it also become in vain. The defendant Nos.1 and 2 who are unnecessarily troubling the plaintiff, on the strength of the decree and filed an execution petition before the Hon’ble Court to take delivery of possessing. The schedule of the property in OS 186/2002 is not correct and boundary of sy.no. is also not correct.”

¶166

“10(a). The 1^st defendant was the lawful owner in possession of the suit schedule property. The alleged transaction in between the plaintiff and defendant No.1. through the sale agreement was time barred. As such, the plaintiff has not entitled for any relief. before filing the suit by the plaintiff in O.S.No.186/2002 against the defendant for specific performance of the contract, the defendant No1.has executed the registered sale deed in favour of defendant No.2 pertaining to the suit schedule property by receiving the sale consideration and he has also handed over the vacant possession of the suit schedule property on 17-10-2002 itself. when the registered sale deed executed. At that time, there was no suit pending and there was no

¶167

¶168

agreement was in force as the said alleged sale agreement was time barred at that time. Ever since the date of said registered sale deed, the defendant No.2 is in possession and enjoyment of the suit schedule property and he has also constructed a house as soon as he purchase the suit schedule property form the 1^st defendant. All these facts are very well known to the plaintiff by obtaining a decree by suppressing the material facts by this hon’ble court, even though he has no right, tile, possession in or over th suit schedule property is harassing the defendant by filing one after the other suit against defendant No.1.”

¶169

Thus according to the plaintiff-B.O.

¶170

Thimmesh in O.S.No.156/2003 it is not his case that it is ante dated.

¶171

The next point is, whether sale agreement has become a scrap of paper and not enforceable. In this connection, the limitation for specific performance of contract is “3 years”.

¶172

Under the case on hand, no doubt, time period was fixed upto 30-9-2001 in the sale agreement dated 6-9-2001. The suit for specific

¶173

¶174

performance of the sale agreement is filed on 7- 10-2002 and two months in advance, earlier to filing of the suit. In the circumstances, as per the admission of the plaintiff, the agreement was not cooked up or concocted, but not enforceable on the face of it by virtue of not performance or non ready and willingness of the Smt. Shakunthalamma. The said decree for specific performance came to the knowledge of the plaintiffB.O. Thimmesh, but, it was not challenged in appeal or other wise. However, suit is filed for cancellation of the decree. But the question of readiness and willingness and what transpired between the plaintiff Shakunthalamma and defendant No.2

¶175

Somashekarappa is not the domain of B.O.Thimmesh. The very knowledge of the sale agreement and the absence of pleading that the agreement was not antedated makes the said agreement was enforceable on

¶176

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the date of filing of the suit. The plaintiff - B.O. Thimmesh plead that the agreement was not enforceable and hence, he was right in purchasing property. The question that would arise is, whether the said agreement was not become void agreement or barred by time. In this connection, if at all, any mischief is played it is by Somashekarappa who has taken the unfair advantage of the agreement/sale deed and has executed the sale agreement dated 6-9-2001 in favour of Smt.Shakunthalamma and thereafter executed the registered sale deed in favour of plaintiff-B.O.Thimmesh and thereafter, he did not contest the suit filed by Thimmesh in O.S.No.156/2003 and also suit filed by Shakunthalamma in O.S.No.134/2004.

¶178

Learned counsel for B.O.Thimmesh submits

¶179

that the plaintiff-B.O.Thimmesh has constructed the house over the property. However, no documents

¶180

¶181

were furnished in this connection to show that the construction was in accordance with the permission by the competent authorities.

¶182

Among all the three proceedings, I hold default, malafides and taking unfair advantage of the given situation lies with the said Somashekarappa. The recognized principle is that, no one can enrich himself at the cost of another. Whether the sale agreement dated 6-9-2001 was called in question or sale deed dated 12-08-2002 or otherwise, parties are supposed to represent themselves in fair and equitable manner. As the entire fault lies with Somashekarappa, he is liable to make good the loss to the appellant-B.O.Thimmesh by refunding the amount of Rs.3,000/- together plus amount of expenditure on stamp duty and registration with interest at 18% p.a. right from 12-8-2002 till the payment of the same in full and costs throughout. Accordingly, the Judgment

¶183

¶184

and decree appealed are confirmed with said modification the appeals are disposed of and Cost shall be paid by the defendants to appellants.

¶185

Sd/JUDGE

¶186

tsn*

B O Thimmesh v. Smt. Shakunthalamma

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B O Thimmesh v. Smt. Shakunthalamma

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