Dismissed

Sri Chandrashekar v. Mr Gorge Albuquerque Pai

Karnataka HC10 Jul 2023RSA/1484/2014

Case brief

AI extract

What is this about?

This judgment dismissed two second appeals arising from conflicting suits regarding title and rights to extract clay. The High Court upheld the First Appellate Court's finding that a sale deed was not binding on the buyer who acquired the property with knowledge of a prior unregistered agreement, relying on Section 48 of the Transfer of Property Act.

What did the court decide?

Both regular second appeals filed under Section 100 of CPC were dismissed as no substantial question of law arises.

Sri Chandrashekar Vs Mr Gorge Albuquerque Pai — Partition | Karnataka HC (2023)

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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REGULAR SECOND APPEAL NO. 1484 OF 2014 (INJ)

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C/W

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REGULAR SECOND APPEAL NO. 1485 OF 2014(DEC/INJ)

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RSA No.1484/2014:

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BETWEEN:

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SRI CHANDRASHEKAR AGED ABOUT 46 YEARS S/O NARASAPPA POOJARY R/AT KURUVEMAR HOUSE THENKA ULIPADY VILLAGE MALALI POST – 574 151. MANGALORE TALUK, D.K.

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…APPELLANT

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(BY SRI RANJAN KUMAR K, ADVOCATE)

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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AND:

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MR. GORGE ALBUQUERQUE PAI AGED ABOUT 62 YEARS S/O LATE CYRIL ALBUQUERQUE R/AT HOIGE BAZAR MANGALORE – 575 001.

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…RESPONDENT

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(BY SRI SANATH KUMAR SHETTY, ADVOCATE SRI M VISHWAJITH RAI, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:26.6.2014 PASSED IN R.A.No.101/2010 ON THE FILE OF THE III ADDL.

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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SENIOR CIVIL JUDGE & JMFC., MANGALORE, D.K, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.6.2010 PASSED IN O.S.No.767/2002 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE & JMFC., MANGALORE, D.K.

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RSA No.1485/2014:

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BETWEEN:

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SRI CHANDRASHEKAR AGED ABOUT 46 YEARS S/O NARASAPPA POOJARY R/AT KURUVEMAR HOUSE THENKA ULIPADY VILLAGE MALALI POST, MANGALORE TALUK D.K. - 574 165.

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...APPELLANT

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(BY SRI RANJAN KUMAR K, ADVOCATE)

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AND:

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1 . MR. GEORGE ALBUQUERQE PAI AGED ABOUT 62 YEARS S/O LATE CYRIL ALBUQUERQUE R/AT HOIGE BAZAR

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MANGALORE – 575 001.

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2 . GANESH POOJARY S/O KORAGAPPA POOJARY MAJOR, R/AT KURUVEMER HOUSE NEAR MARUTHI GUDI TENKA ULIPADY P.O MALALI PANCHYATH-574 165 MANGALORE TALUK.

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….RESPONDENTS

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(BY SRI SANATH KUMAR SHETTY, ADVOCATE FOR SRI M VISHWAJITH RAI, ADVOCATE FOR R1 R2-SERVED)

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.6.2014 PASSED IN R.A.NO.100/2010 ON THE FILE OF THE III ADDLITIONAL SENIOR CIVIL JUDGE & JMFC., MANGALORE, D.K, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.6.2010 PASSED IN O.S.No.156/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE & JMFC., MANGALORE, D.K.

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

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COMMON JUDGMENT

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The plaintiff in O.S.No.156/2004 has filed a suit against

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defendant Nos.1 and 2 for the relief of declaration that he has got a right to excavate and extract the clay in the suit schedule property on the basis of the agreement dated 04.07.1996 with one Late Sri.Koragappa Poojary, father of defendant No.1 and that the sale deed dated 08.10.2001 executed by defendant No.1 in favour of defendant No.2 is not binding on him and on the suit schedule property. The plaintiff also sought the relief of injunction against the defendants from alienating, obstructing and excavating and extracting clay from the suit schedule property, till the period of agreement dated 04.07.1986 ie., 50 years. The plaintiff has also sought the relief of cancellation of the sale

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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deed dated 08.10.2001 executed by defendant No.1 in favour of defendant No.2. The said suit came to be dismissed by judgment and decree dated 24.06.2010. Aggrieved by the judgment and decree, the plaintiff filed an appeal in R.A.No.100/2010 and the same came to be allowed in part, setting aside the judgment and decree of the Trial Court and decreeing the suit of the plaintiff in part holding that the sale deed executed by defendant No.1 in favour of defendant No.2 is not binding on the right of the plaintiff and the plaintiff is having right to excavate the clay from the suit property and restrained defendant No.2 from causing any obstruction in excavating the clay from the suit schedule property, till the period of agreement. Aggrieved by the said judgment and decree of the First Appellate Court, defendant No.2 has filed R.S.A.No.1485/2004.

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Defendant No.1 in the said suit namely Sri.Chandrashekar Poojary had filed a suit in

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O.S.No.767/2002 against the plaintiff ie., Mr.George

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Albuquerque seeking the relief of injunction restraining him

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5 - NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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from committing trespass or encroaching or causing damage

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to the suit schedule property. The suit schedule property

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involved in the suits is Sy.No.7/7P1 (part measuring 40 cents) situated in Tenka Ulipady Village of Mangaluru Taluk. The said suit came to be decreed by the judgment and decree dated 24.06.2010. Aggrieved by the same, the

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defendant of that suit filed R.A.No.101/2010 before the III Additional Senior Civil Judge and J.M.F.C., Mangaluru. The said appeal came to be allowed and the judgment and decree passed by the Trial Court came to be set-aside. Aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiff in that suit has filed R.S.A.No.1484/2014.

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Heard learned counsel for the appellant and learned counsel for respondent No.1 in both the appeals on admission.

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Since, both the appeals are connected, they have been

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taken up together for admission.

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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The parties will be referred to by their rankings as in O.S.No.156/2004.

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Defendant No.2 purchased the suit schedule property from defendant No.1 by a sale deed dated 08.10.2001 (Ex.P4). The father of defendant No.1 - Sri.Koragappa Poojary bequeathed the suit property in favour of his son Sri.Ganesh Poojary (defendant No.1).

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It is the case of the plaintiff that Sri.Koragappa Poojary – father of defendant No.1 has executed an agreement Ex.P4 in favour of the plaintiff to extract the clay from the suit schedule property for a period of 50 years and that agreement is executed on 04.07.1996. Defendant No.1 was a witness to the said agreement dated 04.07.1996. The said agreement dated 04.07.1996 is an unregistered agreement. Defendant No.2 – the purchaser of the suit schedule property disputed the said agreement dated 04.07.1996. Defendant No.1 who is a witness to the said agreement has not entered the witness box. Defendant No.2 also did not

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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choose to call defendant No.1 as his witness and examined him.

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The First Appellate Court has held that as the residential address of both defendant Nos.1 and 2 is the same, he is aware of the said agreement dated 04.07.1996. Defendant Nos.1 and 2 are related to each other. During the subsistence of the said agreement dated 04.07.1996, defendant No.1 executed the sale deed dated 08.10.2001 in favour of defendant No.2. Based on the said sale deed dated 8.10.2001, defendant No.2 filed a suit in O.S.No.767/2002 seeking the relief of injunction against the plaintiff restraining him from interfering with his possession of the suit schedule property. The First Appellate Court in both the suits held that since defendant Nos.1 and 2 are residing in the same address, defendant No.2 – the purchaser is aware of the agreement dated 04.07.1996 and inspite of that, he purchased the property by a sale deed dated 08.10.2001.

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8 - NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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As per the agreement dated 04.07.1996, the plaintiff is

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having right to extract the clay in the suit schedule property for a period of 50 years. During the subsistence of the said agreement, defendant No.1 sold the said property to defendant No.2. Defendant No.2 acquired the said property under a sale deed dated 08.10.2001. Even though defendant No.2 was not aware of the agreement dated 04.07.1996, but as it is executed by his vendor’s father wherein his vendor is one of the signatory, as a witness he is bound by the said agreement and his purchase is subject to the right of the plaintiff under the agreement dated 04.07.1996. The said aspect has been provided under the provisions of Section 48 of the Transfer of Property Act. Therefore, defendant No.2 cannot seek injunction restraining the plaintiff from entering the suit schedule property to exercise his rights under the agreement dated 04.07.1996. The sale deed dated 08.10.2001 is subject to the right of the plaintiff under the agreement dated 04.07.1996. Therefore, to the extent of right of the plaintiff under the agreement dated 04.07.1996, defendant No.2 has to allow the plaintiff

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NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

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to exercise his right as per the agreement dated 04.07.1996. Therefore, the sale deed dated 08.10.2001 is not binding on the rights of the plaintiff under the agreement dated 04.07.1996.

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Considering all these aspects, the First Appellate Court has rightly dismissed the suit filed for relief of injunction in O.S.No.767/2002 by setting aside the decree passed by the Trial Court and rightly decreed the suit in O.S.No.156/2004 setting aside the judgment and decree passed by the Trial Court.

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No substantial question of law arises for consideration

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in these appeals. Hence, both the appeals are dismissed .

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Sd/JUDGE

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List No.: 1 Sl No.: 27

Sri Chandrashekar v. Mr Gorge Albuquerque Pai

Case brief

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Sri Chandrashekar v. Mr Gorge Albuquerque Pai

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