Allowed

Mrs. Bhagyamma v. the N.G.E.F. Employees and Ex - Employees

Karnataka HC10 Nov 2023RFA/1394/2016

Case brief

AI extract

What is this about?

Regular first appeal by successful plaintiff against dismissal of permanent injunction suit regarding co-op society property. High Court allowed additional documents (No Objection Certificate, byelaws) proving sale was valid, set aside impugned judgment, and decreed the suit.

What did the court decide?

The impugned judgment and decree were set aside; the suit for permanent injunction was decreed.

Mrs. Bhagyamma Vs the N.G.E.F. Employees… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:40416 RFA No. 1394 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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REGULAR FIRST APPEAL NO.1394 OF 2016 (INJ)

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BETWEEN:

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MRS. BHAGYAMMA W/O. KRISHNAREDDY, AGED ABOUT 47 YEARS, RAJANAKUNTE, BANGALORE NORTH TALUK BANGALORE – 560 064. ... APPELLANT

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(BY SRI AJIT P.B., ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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THE N.G.E.F. EMPLOYEES AND EX-EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., NO.215, 1^ST FLOOR, LINK ROAD, SHESHADRIPURAM, BENGALURU-560 020 REPRESENTED BY ITS SECRETARY. ... RESPONDENT

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(BY SMT. JAYA N. BIJU FOR SRI V.S. BIJU, ADVOCATES)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE ORDER DATED 01.07.2016 PASSED IN O.S. NO.10464/2015 ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.7), DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.10464/2015 is directed against the impugned

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judgment and decree dated 01.07.2016, passed by the XXII Addl. City Civil & Sessions Judge, Bengaluru, whereby, the said suit filed by the appellant-plaintiff against the respondent-defendant for permanent injunction and other reliefs in relation to the suit schedule immovable property was dismissed by the trial Court.

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Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.

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Perusal of the material on record including the impugned judgment would indicate that the appellantplaintiff instituted the aforesaid suit, inter alia, contending that the suit schedule property originally belonged to her vendor C.Krishnappa, who acquired the same vide registered sale deed dated 12.05.2014 executed by the respondent-society in favour of Krishnappa, which was

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followed by a rectification deed dated 21.10.2014 also executed by the respondent-defendant in favour of the said Krishnappa. It was also contended that the respondent-society had issued allotment letter dated 20.10.2014 and possession certificate also dated 20.10.2014 in favour of the said Krishnappa and put him in actual and physical possession and enjoyment of the suit schedule property. The plaintiff contended that vide registered sale deed dated 14.11.2014, the aforesaid Krishnappa sold, transferred and conveyed the suit schedule property absolutely in favour of the appellantplaintiff and put her in lawful and peaceful possession and enjoyment of the suit schedule property, pursuant to which, the appellant became the absolute owner in possession and enjoyment of the suit schedule property. It was also contended that the revenue records in relation to the suit schedule property have been made out in the name of the appellant-plaintiff and the Bangalore Development Authority (“BDA”) has also issued site allotment letter, site release certificate and correct

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dimension report as well as an endorsement, all of which clearly establish that the appellant was in lawful and peaceful possession and enjoyment of the suit schedule property and since the respondent and its officials are attempting to interfere with the appellant’s peaceful possession and enjoyment of the suit schedule property, the appellant was constrained to institute the instant suit for permanent injunction and other reliefs.

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The material on record reveals that the respondent-defendant having entered appearance before the trial Court did not file its written statement nor contested the suit.

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The plaintiff examined herself as PW.1 and the documentary evidence at Exs.P-1 to P-18 were marked on her behalf. Respondent-defendant did not cross-examine PW.1 nor adduce any oral and documentary evidence on

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his behalf and did not even argue the matter on merits. Despite the aforesaid facts and circumstances and the complete non-contesting of the suit by the respondent-

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defendant, the trial Court proceeded to pass the impugned judgment and decree dismissing the suit filed by the appellant-plaintiff who is before this Court by way of the present appeal.

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6. During the pendency of the present appeal, the

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appellant has filed an application under Order XLI Rule 27 of the Code of Civil Procedure Code, 1908 along with copy

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of the no objection and no due certificate issued by the respondent-society in favour of the plaintiff’s vendor C.Krishnappa. The appellant has also produced copy of the bye-laws of the respondent-society. It is contended that the said bye-laws of the society permit the allottee to sell the suit schedule property in favour of third parties after obtaining necessary no objection certificate from the society and the procedure in this regard has been followed by the plaintiff’s vendor C.Krishnappa who obtained the same from the respondent-society and executed the sale deed in favour of the appellant. It is, therefore, submitted that the said documents are relevant and necessary for

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NC: 2023:KHC:40416 RFA No. 1394 of 2016

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the purpose of adjudication of the present appeal. The respondent-society has not filed its statement of objections to the said application.

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After having heard both sides, the following

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points arise for consideration in the present appeal:

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(i) Whether the appellant has made out sufficient grounds to allow I.A.No.1/2016 filed under Order XLI Rule 27 CPC?

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(ii) Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal?

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8. Point No.1:

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Perusal of the impugned judgment and decree will indicate that the main ground on which the trial Court has

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dismissed the suit for permanent injunction filed by the appellant-plaintiff is by coming to the conclusion that the sale deed executed by the plaintiff’s vendor, C.Krishnappa was within the non-alienation period of five years as stipulated in the allotment letter dated 20.10.2014 (Ex.P-

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and the sale deed dated 12.05.2014 (Ex.P-8) which prohibit the said Krishnappa from selling the suit schedule property in favour of third parties during the subsistence of the non-alienation period. However, in order to establish that Krishnappa was entitled to execute the sale deed in her favour, the appellant-plaintiff has filed I.A.No.1/2016 along with the copy of the no objection certificate and the bye-laws of the respondent-society, in particular, bye-law No.57(14) which permits the allottee to sell the suit schedule property after obtaining necessary

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no objection certificate from the society, which has been issued in favour of the said Krishnappa as can be seen from document No.1 produced by the appellant. Under the circumstances, I am of the considered opinion that the documents produced by the appellant comprising of the no objection certificate and no due certificate as well as the bye-laws of the society are relevant and the material for

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the purpose of adjudication of the issues in controversy between the parties, particularly, in light of the finding recorded by the trial Court that the sale in favour of the

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plaintiff was within the non-alienation period. Consequently, I.A.No.1/2016 is allowed and the

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documents produced along with the same are received on record.

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9. Point No.2:

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The next question that arises for consideration is, as to whether production of the additional documents by the appellant-plaintiff which has been permitted by this Court while answering point No.1 would require the appeal to be remitted back to the trial Court. In this context, it is relevant to state that, apart from the fact that the respondent-society has not filed any objection to I.A.No.1/2016 with regard to legality, validity and genuineness of the additional documents, the documents to be produced by the appellant along with I.A.No.1/2016 has not been disputed by the respondent-society and as such, in my considered opinion, remanding the matter back to the trial Court for the purpose of considering the

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NC: 2023:KHC:40416 RFA No. 1394 of 2016

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said documents would not arise in the facts and circumstances of the case.

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As stated supra, the main ground on which the trial Court dismissed the suit is by coming to the conclusion that the sale deed executed by C.Krishnappa in favour of the plaintiff was within the non-alienation period. However, in light of the additional documents produced by the appellant, which clearly establish that the no objection certificate was issued in favour of the said Krishnappa on 12.11.2014 prior to execution of the sale deed at Ex.P-1 dated 14.11.2014 in favour of the appellant-plaintiff, I am of the considered opinion that the trial Court committed an error in dismissing the suit for permanent injunction filed by the appellant, particularly, when the unimpeached pleadings and evidence of the plaintiff (PW.1) and the documentary evidence at Exs.P-1 to P-18 conclusively establish that the plaintiff was in lawful and peaceful possession and enjoyment of the suit schedule property. In the circumstances, the impugned judgment and decree

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passed by the trial Court being contrary to law as well as

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the material on record, the same deserves to be set aside

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and the suit of the plaintiff deserves to be decreed. Accordingly, point No.2 is also answered in favour of the appellant-plaintiff.

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In the result, I pass the following:

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ORDER

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(i) The appeal is hereby allowed.

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(ii) The impugned judgment and decree dated 01.07.2016, passed in O.S.No.10464/2015 is hereby set aside.

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(iii) The suit of the plaintiff is decreed as prayed for.

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Sd/JUDGE

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Mrs. Bhagyamma v. the N.G.E.F. Employees and Ex - Employees

Case brief

What is this about?

What did the court decide?

Mrs. Bhagyamma v. the N.G.E.F. Employees and Ex - Employees

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

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