Dismissed

Sri Gangaramaiah v. Smt Chikkamma

Karnataka HC4 Oct 2021RSA/419/2021

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal challenging the dismissal of an execution objector's claim. The appellant argued that the lower courts failed to frame issues regarding land survey number interchange between two parcels. The court found the claim unsubstantiated as lower courts correctly considered evidence showing collusion to defeat a specific performance decree.

What did the court decide?

The second appeal filed under Section 100 CPC is dismissed.

Sri Gangaramaiah Vs Smt Chikkamma — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.419/2021 (SP)

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BETWEEN:

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SRI GANGARAMAIAH, S/O LATE RAMAIAH, AGED ABOUT 64 YEARS, R/O KAREKALPALYA, DASANAPURA HOBLI, BENGALURU NORTH TALUK-560 025. … APPELLANT

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[BY SRI D.R. RAVISHANKAR, ADVOCATE FOR M/S. LEX NEXUS]

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AND:

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SMT. CHIKKAMMA, W/O CHIKKANNA, AGED ABOUT 74 YEARS, R/O MARALENAHALLI VILLAGE, GOLLARAHATTI, TUMKUR KASABA, TUMAKURU TALUK-572 101.

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SMT.NAGAMMA, W/O RAJANNA, D/O RANGASWAMAIAH, AGED ABOUT 72 YEARS, R/O KUPPUR VILLAGE, TUMAKURU TALUK-572 101. ... RESPONDENTS

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[BY SRI V.B. SIDDARAMAIAH, ADVOCATE C/R-1; NOTICE TO R-2 IS HELD SUFFICIENT VIDE ORDER DATED 15.07.2021]

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THIS R.S.A IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.09.2020 PASSED IN R.A.NO.290/2019 (OLD NO.93/2018) ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 01.06.2018 PASSED IN EX.NO.6/2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC-I AT TUMAKURU, OVERRULING THE OBJECTION OF APPELLANT AND HOLDING THAT APPELLANT, HAS NO RIGHT OVER EXECUTION SCHEDULE PROPERTY.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the

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learned counsel for the appellant and the learned counsel for respondent No.1 after securing the records from the Court below.

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This appeal is filed challenging the judgment and

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decree dated 30.09.2020 passed in R.A.No.290/2019 on the file of the VII Additional District Judge, Tumakuru.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of this Court.

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The factual matrix of the case is that the appellant herein had filed an application before the Executing Court under

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Order 21 Rule 97 of CPC to adjudicate his claim over the suit schedule property. The appellant/objector in his affidavit filed in support of the application states that the DHR herein filed a suit against the JDR herein for the relief of specific performance in respect of the suit schedule property based on the unregistered and insufficiently stamped agreement of sale. The JDR herein did not file her written statement due to her illiteracy and ill health. The said agreement of sale was created and concocted by the DHR. The agreement schedule property Sy.No.51/1A measuring 1 acre 38 guntas of Maralenahally village originally belonged to Chennamma and Lingamma. They sold the same in favour of Doddaiah S/o late Rangappa in the year 1978. After purchasing the property, Doddaiah came in possession and not made alienation in any form. He did not execute any sale deed or agreement of sale in favour of the DHR Chikkamma or JDR Nagamma. Nagamma was not having any right or title over the schedule property to execute agreement of sale in favour of the DHR. The objector purchased Sy.No.51/1A measuring 1 acre 38 guntas under a sale deed from Doddaiah and came in possession of the same. The DHR intentionally not impleaded the lawful owners to the original suit and also in the execution petition with

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an intention to knock off the property. The DHR, though not concerned to the schedule property had filed false suit without the knowledge of the objector and his vendor. Hence, prayed to declare his right over the property purchased by him.

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The DHR replied to the application filed under Order 21 Rule 97 of CPC contending that the land in Sy.No.51/1A of Maralenahalli village bounded by land of Kempaiah towards East, land of Chikkamma towards West, land of Eranna towards North and land of Madakanna Rangaiah towards South was originally belonged to one Chikkamma and she sold the same in favour of Nagamma. Nagamma being the absolute owner of the property executed agreement of sale in favour of the DHR on 05.12.1984 and delivered possession of the property. Nagamma failed to perform her part of contractual obligation and hence the DHR filed suit in O.S.No.229/1991 before the Court below and the suit was decreed. One Doddaiah had property in Sy.No.51/1B. Nagamma and Doddaiah colluding with each other filed petition before the Tahsildar, Tumakuru and got accepted the revenue entries changing the RTC in favour of Doddaiah from Sy.No.51/1B to Sy.No.51/1A and the other objector purchased the said property in collusion and knowing fully well. The

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schedule shown in the agreement and in the plaint, are one and the same and Doddaiah had no right, title much less possession over the schedule property by getting the survey numbers changed and by creating the sale deed. Doddaiah or the objector has no right and title over the schedule property. Sy.No.51/1A and Sy.No.51/1B have same measurement and belonged to the same village; they have been exchanged with an intention to defraud the DHR. The act of objector, his vendor and Nagamma will not take away the right of the DHR over the suit schedule property. Channamma and Ningamma were not having any right to make transfer of property in respect of Sy.No.51/1A.

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The objector in order to prove his contentions,

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examined himself as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 12. On the other hand, the power of attorney holder of DHR is examined as D.W.1 and got marked the documents at Exs.D.1 to 4. During the course of cross-examination of P.W.1, the document was confronted to P.W.1 and he admitted the same and the same is already marked as Ex.P.1 and hence the same is marked as document Ex.D.5 inspite of Ex.P.1. The Trial Court having heard the learned counsel for the objector and the

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learned counsel for the DHR framed the points for consideration whether the objector proves that the DHR has fraudulently obtained the decree in O.S.No.226/1991 and whether the objector has acquired title to the subject matter of the execution property. The Trial Court after considering both oral and documentary evidence available on record on appreciation of particularly the cross-examination of P.W.1 to P.W.3 and D.W.1, answered point Nos.1 and 2 as negative and dismissed the application filed by the objector vide order dated 01.06.2018. Hence, the objector filed R.A. before the First Appellate Court in R.A.No.290/2019.

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The First Appellate Court considering the grounds urged in the appeal, framed the points for consideration whether the Executing Court was correct in over-ruling the objections of the appellant and rejecting the application filed under Order 21 Rule 97 of CPC and whether the application filed under Order 41 Rule 27 of CPC filed by the appellant deserves to be allowed. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered point No.1 as affirmative in coming to the conclusion that the Executing Court

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has not committed any error in rejecting the application filed under Order 21 Rule 97 of CPC and also rejected the application filed under Order 41 Rule 27 of CPC and comes to the conclusion that it does not require any interference of this Court. Hence, the present second appeal is filed before this Court.

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The main contention of the learned counsel for the appellant in the second appeal is that the crux of the issue involved between the parties is whether it is Sy.No.51/1A or Sy.No.51/1B. The learned counsel would contend that the decree holder has filed the suit for the relief of specific performance claiming the right based on the sale agreement dated 05.12.1984 in respect of Sy.No.51/1A. The learned counsel would contend that the Execution petition is also filed to enforce the decree in respect of Sy.No.51/1A. When such being the case, when the objector is claiming the right in respect of Sy.No.51/1B, both the courts i.e., the Executing Court and the First Appellate Court have not framed the proper points for consideration whether the claim is in respect of the property bearing Sy.No.51/1A or Sy.No.51/1B and instead of both the courts have framed the points for consideration whether the decree holder has obtained the decree fraudulently.

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The learned counsel would vehemently contend that when the independent right is claimed by the objector in respect of the property bearing Sy.No.51/1B, both the courts ought to have given the finding in respect of the claim made by the objector and instead of proceeded erroneously and dismissed the application. The learned counsel would contend that this Court has to frame the substantial question of law whether the Executing Court and the First Appellate Court have erred in accepting the plea of the decree holder that Sy.No.51/1A and Sy.No.51/1B situated in Maralenahally Village had been fraudulently been exchanged in the absence of any survey documents being produced and also in the light of Section 63 of the Karnataka Land Revenue Act and whether such plea could be entertained. It is contended that the Executing Court had erred in holding that since Nagamma was owner of 1 acre, she could have sold 1 acre of the property and therefore the decree holder could get the right without identification being established. The learned counsel would contend that the very procedure adopted by the First Appellate Court to give findings contrary to the pleadings is in accordance with Order 41 Rule 31 of CPC.

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The learned counsel for respondent No.1/decree

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holder would contend that both the Courts have given the concurrent finding taking note of the material available on record. The learned counsel would contend that both the Courts have framed proper points for consideration based on the pleadings of the objector. The learned counsel would contend that the objector in his objector’s application has vehemently contended that the vendor of DHR was not having any title in respect of the property bearing Sy.No.51/1A and also contended that the sale agreement was created and concocted by DHR. It is contended that the said property originally belonged to Chennamma and Lingamma and they sold the same in favour of Doddaiah S/o Rangappa in the year 1978 and the said Doddaiah did not execute any sale deed or agreement of sale in favour of DHR Chikkamma or JDR Nagamma and when such pleading was made in the objector’s application, the Executing Court and also the First Appellate Court considered the issues involved between the parties. Hence, the learned counsel for the appellant cannot find fault with framing of points for consideration by the Executing Court.

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The learned counsel brought to the notice of this

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Court the document Ex.D.3 RTC extract wherein the name of Chikkamma was found in column No.12 for the year 1988-89, but in the year 1990-91 the same was changed as K.R.Doddaiah from whom they are claiming the title in respect of Sy.No.51/1A. The learned counsel also brought to the notice of this Court the document Ex.D.4 in respect of Sy.No.51/1B wherein in the year 1988-89, the name of Doddarangaiah was found, but in the year 1990-91, the name of Doddarangaiah is rounded off and the name of Chikkamma is mentioned. The learned counsel relying upon the documents Exs.D.3 and 4 would contend that the objector and the JDR colluding with each other got changed the revenue documents interchanging the property in Sy.No.51/1A and Sy.No.51/1B. The learned counsel also brought to the notice of this Court the sale deed obtained by Chikkamma and also Nagamma in terms of the sale deed dated 12.10.2009 and the said document is marked as Ex.D.5. The learned counsel would contend that in the schedule, the property is mentioned as Sy.No.51/1B and also brought to the notice of this Court the schedule mentioned in the document. The learned counsel would contend that this document is fraudulently obtained by the

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objector from Chikkamma as well as Nagamma to the extent of 1 acre 39 guntas and ought not to have sold the property to the extent of 2 acres instead of Chikkamma was having only 39 guntas as she has already sold 1 acre of land by executing the sale agreement in favour of the DHR.

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The learned counsel also brought to the notice of this Court the sale deed of the objector dated 12.10.2009, which is marked as Ex.P.11 before the Trial Court executed by K.R. Doddaiah and his legal heirs in favour of Gangaramaiah, wherein survey number is mentioned as Sy.No.51/1A to the extent of 1 acre 38 guntas and brought to the notice of this Court under the very sale deed itself on the east it is mentioned as the property of Chikkamma bearing Sy.No.51/1B. The learned counsel brought to the notice of this Court the sale deed executed by Chikkamma i.e., Ex.P.1 which is marked as Ex.D.5 which I have already referred in respect of Sy.No.51/1B and the learned counsel referring these documents i.e., Ex.P.1 and Ex.D.5 would contend that the suit was decreed on 19.12.1998 and thereafter the objector and also the judgment debtor colluding with each other created the document by executing the sale deed on 12.10.2009 and hence the learned counsel would contend that

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the claim made by the objector is not sustainable and prays this Court to dismiss the appeal.

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Having heard the learned counsel for the appellant and the learned counsel for respondent No.1/DHR, it is not in dispute that the objector is claiming right in respect of the property which is sought for execution in Execution No.06/2004. The very claim of the objector is that the sale agreement was concocted and created by the DHR. It is not in dispute that the sale agreement was executed on 05.12.1984. It is the claim of DHR that in terms of the sale agreement boundaries are mentioned and specific description is given in the sale agreement. Chikkamma had sold the property in favour of Nagamma and Nagamma in turn as absolute owner executed the sale agreement in favour of the DHR on 05.12.1984 and also delivered the possession of the property. The agreement holder i.e., DHR is in possession of the property. It is the contention of the DHR that the vendor did not come forward to execute the sale deed and hence suit is filed in O.S.No.229/1991 and the said suit was decreed.

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It is the main contention of the DHR is that one Doddaiah had property in Sy.No.51/1B. Nagamma and Doddaiah colluding with each other filed a petition before the Tahsildar, Tumkuru and got accepted the revenue entries changing the RTC in favour of Doddaiah from Sy.No.51/1B to Sy.No.51/1A and the objector purchased the said property in collusion and knowing fully well that there was a decree in favour of the decree holder. The very first contention of the learned counsel for the appellant is that the Executing Court has not framed the relevant points for consideration and on perusal of the records, the Executing Court has framed the first point for consideration whether the objector proves that the DHR has fraudulently obtained the decree. No doubt, the Executing Court could have framed the point for consideration whether the claim made by the objector in respect of Executing Court subject matter whether he has made out the ground as objector as he is the absolute owner, but the Executing Court taking note of the averments made in the objector’s application wherein a specific allegation is made that the sale agreement is obtained fraudulently and the same was created and concocted by the DHR and hence the said point was considered by the Trial Court.

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But considered the right claimed by the objector while disposing the application.

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The First Appellate Court while considering the issue involved between the parties comes to the conclusion that whether the order passed by the Executing Court is correct or not. I do not find any error committed by the First Appellate Court in re-appreciating the material available on record. The Executing Court also taken note of the pleadings of the parties in paragraph No.24 to 28, the relevant contentions taken by the parties whether the agreement is created and fabricated. In the case on hand, it has to be noted that the vendor of the DHR has not questioned the judgment and decree passed in O.S.No.229/1991 and hence the Executing Court also comes to the conclusion that there is a decree for specific performance in O.S.No.229/1991 and the same is binding on Nagamma. The appellant is also not disputing the fact that there was a decree in favour of the decree holder in respect of Sy.No.51/1A and also Execution petition is filed in respect of Sy.No.51/1A. The learned counsel for respondent No.1 also brought to the notice of

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this Court that in terms of Ex.D.3 survey number was 51/1A in which the name of Chikkamma was found in the year 1988-89,

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but subsequently the same is rounded off and the name of Doddaiah is changed in the year 1990-91 and so also in Ex.D.4 the name of Doddarangaiah was changed rounding off the same in the year 1990-91 and the name of Chikkamma was entered in the document Ex.D.4 i.e. Sy.No.51/1A and Sy.No.51/1B and the same are interchanged as contended by respondent No.1. The very objections filed before the Execution Court is that the same has been interchanged and the entries found in Exs.D.3 and 4 substantiate the contention of the DHR and no basis to interchange the name.

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Now, the learned counsel for the appellant would contend that the decree holder has to substantiate the same. But the fact is that Sy.No.51/1A and Sy.No.51/1B has been interchanged and the name of the persons are interchanged in the document is not in dispute. It is important to note that in the cross-examination of P.W.1 he categorically admits that he did not enquire with his vendors where exactly the lands purchased by him are situated is sufficient to presume that without making proper enquiry he ventured to purchase the property. The admission of P.W.1 is also considered in paragraph No.26 of the Execution Court’s order. The admission

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of P.W.2 and P.W.3 who have been examined on behalf of the objector before the Trial Court also categorically admitted that their mother Chikkamma had sold 1 acre of land within the schedule mentioned in the decree in favour of Nagamma and that Ex.D.5 includes 1 acre of property purchased by Nagamma. These admissions also takes away the contention of the appellant when the property was sold by the mother of P.W.2 in favour of Nagamma and the very same schedule included in Ex.D.5 and hence it is clear that though the property was 1 acre 39 guntas to the whole extent and out of that 1 acre is sold in favour of DHR by Nagamma, who had purchased the property from Chikkamma, the remaining land was only 39 guntas and instead of 39 guntas, total extent of 1 acre 39 guntas was sold in favour of the objector. This admission of P.W.2 and P.W.3 clearly discloses that the judgment debtor and also the objector and Chikkamma have all joined together in order to defeat the decree obtained by the decree holder in O.S.No.229/1991.

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The First Appellate Court, on re-appreciation of both oral and documentary evidence available on record in paragraph No.29 has taken note of the contention of the respective parties and so also in paragraph Nos.23 to 27 considered both oral and

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documentary evidence placed on record and on re-appreciation considered the admission elicited from P.W.1 to P.W.3 and comes to the conclusion that in order to avoid the judgment and decree passed in O.S.No.229/1991, in the year 2009, all of them joined together in executing the document in Sy.No.51/1A and Sy.No.51/1B interchanging the names in the RTC Exs.D.3 and 4. The total extent available is 4 acres and out of that already there was a sale agreement in favour of DHR and remaining land is to the extent of 3 acres but the JDR along with Chikkamma executed the sale deed in favour of the objector to the extent of 2 acres. When such being the case, it is clear that the survey numbers are got interchanged in terms of Exs.D.3 and 4 and also while executing the sale deed on 12.10.2009 different numbers are mentioned while executing the document in respect of Sy.No.51/1A and also Sy.No.51/1B. Both the Courts have considered this aspect i.e., both oral and documentary evidence available on record and comes to the conclusion that the claim made by the objector does not substantiate his claim and out of total extent of 4 acres, sale agreement was executed for 1 acre on 05.12.1984 and subsequently in respect of entire land, the objector got obtained the sale deed to the extent of 4 acres.

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When such being the material available on record and when both the Executing Court as well as the First Appellate Court have given a definite finding that the objector has not made out his claim and when he obtained the sale deed with the objector as well as the original owner inclusive of the entire land, the same is nothing but to defeat the decree which the decree holder has obtained in O.S.No.229/1991 and hence I do not find any grounds to admit the appeal and invoke Section 100 of CPC. The contention of the learned counsel for the appellant that the matter requires to be remanded for further adjudication also cannot be accepted as both the courts have given the concurrent finding appreciating the material available on record including both oral and documentary evidence placed on record and particularly admission of P.W.1 to P.W.3. Hence, I do not find any force in the contention of the learned counsel for the appellant either to admit the appeal or to remand the matter for re-consideration. The material available on record clearly discloses that the objector disputes the sale agreement as concocted and as fraudulently obtained but the JDR not disputes the same and contested in the suit. Hence, it is clear that all of

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them joined together to defeat the claim of the DHR and hence no grounds to entertain the second appeal.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Sri Gangaramaiah v. Smt Chikkamma

Case brief

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Sri Gangaramaiah v. Smt Chikkamma

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