Allowed

Sri Aslam Pasha v. Syed Ibrahim @ Chand Pasha

Karnataka HC2 Sept 2021WP/43694/2015

Case brief

AI extract

What is this about?

The High Court allowed an impleading application in final decree proceedings regarding a partition suit, holding that the petitioner-applicants were proper necessary parties. The others were attempting to collusively alter property allocation in the final decree to frustrate the applicants specific performance rights.

What did the court decide?

The order dismissing the impleading application dated 29.08.2015 was set aside; the application under Order I Rule 10(2) read with Order XX Rule 18(2) CPC was allowed for impleadment of the applicatio

Sri Aslam Pasha Vs Syed Ibrahim @ Chand… — Contract and Commercial Disputes | Karnataka HC (2021)

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WP No.43694 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.43694 OF 2015 (GM-CPC)

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BETWEEN:

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SRI. ASLAM PASHA AGED ABOUT 44 YEARS S/O LATE SYED AZEEZ PASHA

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SRI. SARDAR PASHA AGED ABOUT 41 YEARS S/O LATE SYED AZEEZ PASHA

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BOTH THE PETITIONERS ARE R/AT KADARIPALYA STREET SIDLAGHATTA TOWN CHIKKABALLAPURA DISTRICT-562 101

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...PETITIONERS

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(BY SRI. A. MADHUSUDAN RAO, ADVOCATE FOR SRI. M.N. UMESH, ADVOCATE)

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AND:

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SYED IBRAHIM @ CHAND PASHA SINCE DIED BY LRS

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SMT. SHAHNAZ TAJ AGED ABOUT 52 YEARS W/O LATE SYED IBRAHIM @ CHAND PASHA

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SRI. SAQIB PASHA AGED ABOUT 30 YEARS S/O LATE SYED IBRAHIM @ CHAND PASHA

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SMT. SHABRIN TAJ AGED ABOUT 28 YEARS D/O LATE SYED IBRAHIM @ CHAND PASHA

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SRI. SYED ABDUL WAHAB @ RAKIB PASHA AGED ABOUT 26 YEARS S/O LATE SYED IBRAHIM @ CHAND PASHA THE RESPONDENT NO.1 TO 4 ARE R/AT NO.2, 1^ST "A" CROSS, CHINNAYANA PALYA BANGALORE-560 032

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SMT. SHAHEEN TAJ AGED ABOUT 48 YEARS W/O LATE SYED KHASIM @ MUKTAIR

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SRI. ALLAH BAKASH AGED ABOUT 28 YEARS S/O LATE SYED KHASIM @ MUKTHIAR

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SRI. SHAMSHEER AGED ABOUT 26 YEARS S/O LATE SYED KHASIM @ MUKHIAR

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SRI. AMAR PASHA AGED ABOUT 24 YEARS S/O LATE SYED KHASIM @ MUKTHIAR

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SRI. WASEEM PASHA AGED ABOUT 20 YEARS S/O LATE SYED KHASIM @ MUKTHIAR THE RESPONDENT NO.5 TO 9 ARE R/AT YELAHANKA STREET, DEVANAHALLY TOWN BANGALORE RURAL DISTRICT-560 064

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SMT. MAMTAJ AGED ABOUT 59 YEARS W/O LATE NOORULLA

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SMT. ZAHIRA AGED ABOUT 57 YEARS W/O AHMED JAN

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SMT. PARVEEN TAJ AGED ABOUT 52 YEARS W/O SOHRAB JAN

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SMT. PARVEEN TAJ AGED ABOUT 40 YEARS W/O LATE SYED ISMAIL SARTAJ

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SRI. KIZER PASHA AGED ABOUT 47 YEARS S/O LATE SYED ABDUL WAHAB

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SRI. SIBGATHULLA AGED ABOUT 39 YEARS S/O LATE SYED ABDUL WAHAB

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SRI. HARASHADULLA AGED ABOUT 43 YEARS S/O LATE SYED ABDUL WAHAB

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THE RESPONDENTS NO.10 TO 16 ARE R/AT MASJID GALLI, DEVANAHALLI TOWN BANGALORE DISTRICT-562 110

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… RESPONDENTS

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(BY SMT. B. SUDHA, ADVOCATE FOR R1 TO R9; R10 TO R13- NOTICE IS DISPENSED WITH; R14 & R15-SERVED BUT UNREPRESENTED; SRI. K. MURTHY, ADVOCATE FOR R16)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT RECORDS, EXAMINE THE SAME AND QUASH THE IMPUGNED ORDERS DATED 29.8.2015, IN FDP NO.5/2013, PASSED BY THE HON’BLE COURT OF THE SENIOR CIVIL JUDGE & JMFC, AT DEVANAHALLI VIDE ANNEXURE-C BY ALLOWING THE PRESENT WRIT PETITION AND ETC.

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THIS WRIT PETITION COMING ON FOR FURTHER ARGUMENTS AND HAVING BEEN RESERVED FOR ORDERS ON 04.08.2021, THIS DAY, THROUGH VIDEO CONFERENCE THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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The above petition has been filed seeking for a certiorari to quash the order dated 29.08.2015

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passed in FDP No.5/2013 by the Senior Civil Judge & JMFC., Devanahalli.

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A suit in O.S.No.140/2006 had been filed before the Senior Civil Judge & JMFC., at Devanahalli seeking for partition of the properties mentioned therein, which came to be decreed on 09.03.2012.

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In pursuance thereto, FDP No.5/2013 was filed before the Senior Civil Judge & JMFC., Devanahalli for appointment of a Commissioner for division of the suit schedule properties and passing of final decree etc.

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In the said Final Decree Proceedings, an application under Order I Rule 10(2) read with Order XX Rule 18(2) of Code of Civil Procedure came to be filed seeking for the applicants to be impleaded in the said matter. In the said application, it was contended that:

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4.1. the petitioners and the respondents in the

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Final Decree Proceedings had agreed to sell some portions of the lands comprising in Item No.1 of the suit schedule properties to the said applicants under ten different agreements of sale after settling the suit in OS No.140/2006.

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4.2. The applicants came to know about the disposal of the suit on 09.03.2012 despite which the parties to the suit who are the vendors under the agreements of sale did not execute necessary sale deeds. Hence, ten separate suits have been filed in O.S.Nos.571/2014, 174/2015 to 178/2015, 183/2015 to 186/2015 for specific performance of various agreements.

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4.3. In the meanwhile, instead of getting a final

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decree proceedings passed in terms of the judgment and decree dated 09.03.2012, the

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petitioners and the respondents in FDP No.5/2013 in collusion with each other by way of a compromise entered into between themselves have sought to get allotted properties contrary to the said judgment and decree in order to frustrate the claim of the impleading applicants for specific performance and therefore, they contended that there are required to be brought on record as respondents.

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The said application was objected to. The trial Court after considering the same dismissed the said application on the ground that the impleading applicants were not parties to the preliminary decree and they would not be affected by any Final Decree Proceedings, which would be passed. The presence of the impleading applicants is not necessary for drawing up of final decree.

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It is aggrieved by the same that the impleading applicants-petitioners are before this Court contending that the trial Court had failed to appreciate that the petitioners and the respondents in the Final Decree Proceedings in order to frustrate the rightfull claim of the impleading applicants had entered into internal illegal agreements of division of properties contrary to the agreements and contrary to the preliminary decree. If such a final decree was to be drawn, then it would be the applicants who would be adversely affected. The trial Court has not considered the aspect of the impleading applicants being proper and necessary parties in the right perspective.

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Sri.A.Madhusudan Rao, learned counsel instructed by Sri.M.N.Umesh, learned counsel for the petitioners submits that:

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7.1. The allotment by way of compromise in the

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FDP proceedings is only to try and frustrate the claim of the impleading applicant.

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7.2. He relies on Clauses (13) and (15) of the agreement dated 21.09.2007. The said Clauses are reproduced hereunder for easy

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reference:

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13. It is agreed between the parties that the Purchaser has to get the registered sale deed at his cost by paying the balance sale consideration to the Vendors and the Vendors shall execute the sale deed upon the receipt of balance sale consideration or upon the call of the Purchaser for the execution of the same within six months from the date of disposal/compromise or settlement of the Partition Suit pending on the fie of the Civil Judge, Senior Division, Devanahalli.

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15. The other family members of the Vendors who are parties to the Registered Partition deed have also signed to this Agreement to sell as witnesses, conceding that they have No-objection for the sale of the Schedule property in terms of this Agreement.

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7.3. He also relies on Clause (8) of the said

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agreement of sale dated 19.02.2008 which is reproduced hereunder for easy reference:

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8. In pursuance of this agreement the Purchaser has paid an advance amount of

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Rs.5,00,000/- (Rupees Five lakhs only) by way of Chq.No.856406 Dated. 19.02.2008 drawn in favour of Vendor No.2, and Rs.30,00,000/- (Rupees Thirty lakhs only) by way Cash to Vendor No.2 totaling Rs.35,00,000/- (Rupees Thirty Five Lakhs only). In all the Purchaser has on this day paid a total sum of Rs.35,00,000/- (Rupees Thirty five lakhs only) to the Vendor No.2 in the presence of the witnesses and the Vendor No.2 have acknowledged the receipt of advance amount of Rs.35,00,000/(Rupees Thirty five lakhs only) on the date of this agreement”.

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7.4. He also relies on Clauses (9) and (11) in agreement dated 19.02.2008 which are reproduced hereunder for easy reference:

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9. The Vendor No.2, undertakes that he will withdraw the Suit filed by him in O.S.No.140/2006, on the file of Civil Judge (Sr.Dn.), Bangalore Rural District and the same has been transferred and pending on the file of Civil Judge (Sr.Dn.), Devanhalli, against the family members in respect of the family properties, details as under within three months and only then shall the Vendors execute the sale deed in favour of the purchaser.

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In Sy.No.111 Measuring 1 Acre 36 Guntas (Shazadunnissa & Sibghatulla) In Sy.No.110/4 Measuring 1 Acre 04 Guntas (Shazadunissa, Mumtaz, Zahira) In Sy.No.106 Measuring 2 Acres 25 Guntas (Khamarunissa & Khizar Pasha) In Sy.No.107 Measuring 24 Guntas (Khamarunissa & Parveen Taj) In Sy.No.114 Measuring 1 Acre 11 guntas (Aarshadulla) In Sy.No.108/3 Measuring 15 Guntas (Zahira)

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In Sy.No.108/2 Measuring 15 Guntas (Zahira & Praveen Taj)

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Totaling in all measuring 8 Acres 13 Guntas situated in Akkupet Village, Kasaba Hobli, Devenahalli Taluk, Bangalore Rural District.

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11. That the Vendors have agreed to execute the sale deed either in the name of the Purchaser or his nominee/s as desired by the Purchaser within six months after the withdrawal of Partition Suit pending on the filed of Civil Judge (Sr.Dn.), Devanahalli and the Vendor shall comply the same within three months.

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7.5. He submits that there are similar clauses in other agreements of sale entered into by the petitioners and the respondents in FDP No.5/2013. He submits that the agreements of sale were executed in favour of the impleading applicants subsequent to the initiation of the suit in O.S.No.140 of 2006.

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7.6. It is the obligation on the part of the vendors in the said agreements of sale to either compromise or settle or withdraw the suit in O.S.No.140/2006 and that is it is after the disposal of the said suit in O.S.No.140/2006

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that they would execute necessary sale deeds

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in favour of the impleading applicants.

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7.7. The petitioners and the respondents are well aware of the contents of the agreement of sale executed by each other in favour of the impleading applicants. All the petitioners and the responders in FDP No.5/2013 have executed the agreement of sale. Thus, Item Nos.6 and 7 in its entirety have been agreed to be sold to the petitioners.

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7.8. In the agreement of sale, specific extent of lands has been mentioned. This being on a representation being made that those particular portions of the land would be allotted to the respective vendors, each of the vendors is aware of the agreement of sale executed by the other vendor.

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7.9. A preliminary decree having been passed in

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terms of the understanding between the parties, it is only in the final decree proceedings that in order to frustrate the claim of the impleading applicants, the properties are sought to be divided in different manner than agreed upon to try and frustrate the claim of the specific performance raised by the impleading applicants in the various suits filed.

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7.10.The right of the impleading applicants being sought to be frustrated, right of the impleading applicants being sought to be negated, the impleading applicants are proper and necessary parties who are required to be brought on record in order to put forth their case so that the Final Decree Proceedings are conducted in the manner agreed upon and/or not conducted in a manner to frustrate the

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claim of the impleading applicants by collusion between the parties.

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Per Contra, Smt.B.Sudha, learned counsel for the respondent Nos.1 to 9 submits that

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8.1. Impleading applicants are not parties to the preliminary decree. The impleading applicants cannot claim any right and/or seek for impleadment.

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8.2. The right of the impleading applicants is not crystallized inasmuch as there is only an agreement of sale executed in their favour, no sale deeds has been executed in their favour.

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8.3. The impleading applicants have filed the suits for specific performance, which is pending. It cannot be said that the said suits would be decreed in favour of the impleading applicants. Therefore, there would be no requirement for them to be brought on record.

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8.4. The trial Court has rightly rejected the application. There is no requirement for this Court to interfere with the said orders passed by the trial Court.

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Sri.K.Murthy, learned Counsel for the respondent No.16 also adopts the submission made by Smt.Sudha, learned counsel for respondent Nos.1 to 9.

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Heard Sri.A.Madhusudan Rao, learned counsel instructed by Sri.M.N.Umesh, learned Counsel for the petitioner, Smt.Sudha, learned Counsel for the respondent Nos.1 to 9 and Sri.K.Murthy, learned Counsel for the respondent No.16 and perused the papers.

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The short but important question that would arise for determination by this Court is as to

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"Whether a person could be impleaded in a proceedings on the ground that his interest in the subject matter of the proceedings are

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being frustrated by the parties already on record and contesting the proceedings?"

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It is not in dispute that the petitioners and the respondents in FDP No.5/2013 have executed various agreements of sale in favour of the impleading applicants agreeing to convey the portions of the property stated therein. It is not in dispute that the impleading applicants have filed various suits for specific performance.

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Initially, the impleading applicants had filed the suits for permanent injunction restraining the defendants therein who are the petitioners and respondents in FDP No.5/2013 from selling the property. In the said suits, written statement was filed. In the written statement, it was contended that the suit for permanent injunction was not maintainable and suit for specific performance ought to have been filed. In the said written statement, it was further accepted that the

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agreement of sale in favour of the plaintiffs had been executed. But however it was denied that any right under the said agreements was subsisting. Similar averments were made in the written statement filed in all the suits. Thus, it can be seen that there is no dispute as regards agreement of sale having been executed.

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The dispute is as regards whether they are subsisting and/or whether they could be enforced that is to say whether the impleading applicants would be entitled to the relief of specific performance or not would have to be looked into, which would be considered by the court before which the suits are pending.

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A perusal of the agreements of sale categorically indicate that it was the obligation of the vendors to the various agreements of sale to get the suit compromised, settled or withdrawn. The Clauses

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extracted hereinabove establish the obligations of the vendors.

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It is the contention of Smt.Sudha, learned Counsel for the respondent Nos.1 to 9 that the agreement of sale per se would not create any interest and therefore without obtaining a decree of specific performance in the suit filed, the impleading application cannot be maintained.

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Sections 54 and 55 of the Transfer of Property Act read as under:

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54 “Sale” defined .—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

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Sale how made.— 3Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

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In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

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Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

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Contract for sale .—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

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It does not, of itself, create any interest in or charge on such property.

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55. Rights and liabilities of buyer and seller .—In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:—

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(1) The seller is bound—

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(a) to disclose to the buyer any material defect in the property 1[or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;

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(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;

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(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;

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(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;

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(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;

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(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;

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(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.

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(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:

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Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.

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The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

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(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power:

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Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buye of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident

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(4) The seller is entitled—

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(a) to the rents and profits of the property till the ownership thereof passes to the buyer;

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(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchasemoney, to a charge upon the property in the hands of the buyer, 1[any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part 1[from the date on which possession has been delivered].

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(5) The buyer is bound—

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(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;

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(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs:

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provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;

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(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;

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(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.

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(6) The buyer is entitled—

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(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;

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(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.

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An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent.

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Though Section 54 states that an agreement of sale

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by itself does not create any right but in terms of Section 55 extracted hereinabove, it can be seen that when payments have been made on an agreement of sale, the purchaser who has made such payments would have a charge on the property insofar as payment advanced is concerned.

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In the present case, it is not in dispute that amounts have been advanced. Thus, it cannot be said that it is a mere agreement of sale.

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Be that as it may when the said suit was pending the vendors i.e., the petitioners and the respondents in FDP No.5/2013 had agreed to execute the sale deeds in favour of the impleading applicants and had also received monies in advance. Their obligation was to compromise, settle or withdraw the suits. It is on the basis of the said statements made and/or covenant included that the impleading applicants have made payments of monies.

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The purchasers-impleading applicants did not have any dispute nor did they seek to implead in the suit but have only sought to be impleaded in the FDP since it is in the Final Decree Proceedings where the allocation of the properties is sought to be changed from that contained in the preliminary decree.

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Thus, it is clear that the petitioners and the respondents in final decree proceedings are seeking to change the preliminary decree. The reason for the same according to Sri.A.Madhusudan Rao, learned counsel for the petitioners is to frustrate the claim of the impleading applicants.

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Though it is the contention of Smt.Sudha., learned counsel for respondent Nos.1 to 9 that the final decree proceedings can only be between the parties to the preliminary decree, in the present case, the parties to the preliminary decree are in the final decree proceedings and trying to change the preliminary decree and by such change, it is the impleading applicants who would be adversely effected. If such a change were to happen, then the impleading applicants would be left with no other choice but to challenge the final decree passed which would lead to multiplicity of proceedings. Though the principles of dominus litus

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is normally applicable, the said principle would not be applicable when the position of dominus litus is sought to be misused or abused or for that matter when there is a possibility of an abuse of the process of court.

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In the present case, there is a clear and categorical averment made by the impleading applicants as also arguments advanced that the parties to the final decree proceedings are acting collusively to frustrate the interest of the impleading applicants. Since that also appears to be the case as per the reasoning aforestated, I am of the considered view that it is the impleading applicants who are going to be effected due to collusion of the parties already on record, impleading applicants ought to be brought on record by allowing the impleading application, to have their say in the matter and protect their interests from such collusion.

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Having gone through the agreements of sale, which have been executed by the said petitioners and the respondents, as the case may be, as regards portions of identified property, all the petitioners and the respondents having executed various agreements of sale, it is clear that there is a covenant undertaken by the said vendors to sell that particular portions of the property as detailed in agreement of sale.

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It is the contention of Sri.A.Madhusudan Rao, learned counsel for the petitioners that the preliminary decree was in terms of agreement of sale but subsequently allocation was sought to be changed to frustrate the claim of the impleading applicants. Thus, it is clear that if a change in the allocation is now made it will frustrate the claim of the impleading applicants in the specific performance suits filed by the impleading applicants. Needless to say any such change in FDP

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would have direct and substantial adverse impact on the impleading applicants.

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In view of the above, I find that the impleading applicants are proper and necessary parties to the proceedings. Since it is only they who could bring to the notice of the FDP Court about the various agreements, suit pending etc., which currently are being suppressed in FDP No.5/2013.

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I answer the point raised by holding that a person could be impleaded in a proceedings dehors the objections of the Plaintiff when such person’s interest in the subject matter of the proceedings are being frustrated by the parties already on record and contesting the proceedings.

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In view thereof, the order dated 29.08.2015 passed in FDP No.5/2013 by the Senior Civil Judge & JMFC., Devanahalli is set aside. I.A. filed under Order I Rule 10(2) read with Order XX Rule 18(2) of

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Code of Civil Procedure is hereby allowed. The petitioners in FDP No.5/2013 are directed to carry out necessary amendment within 15 days from the date of receipt of certified copy of this order. No costs.

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Sd/JUDGE

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Prs*

Sri Aslam Pasha v. Syed Ibrahim @ Chand Pasha

Case brief

What is this about?

What did the court decide?

Sri Aslam Pasha v. Syed Ibrahim @ Chand Pasha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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