Allowed

Smt. Venkubai v. Sri.P.Subramanyam

Karnataka HC22 Aug 2023WP/50684/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed two writ petitions filed under Article 227. The court permitted the plaintiffs to amend their plaint to challenge a subsequent sale deed and seek possession, allowed recall of evidence and impleadment, while reserving the question of limitation for later.

What did the court decide?

The petitions were allowed; the applications for amendment (I.A. No.23), recall (I.A. Nos.26-27), and impleadment (I.A. No.28) were allowed with liberty to respondents to file written statements.

Smt. Venkubai Vs Sri.P.Subramanyam — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:29813 WP No. 50684 of 2017 C/W WP No. 41200 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 50684 OF 2017 (GM-CPC)

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C/W

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WRIT PETITION NO. 41200 OF 2017 (GM-CPC)

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IN WP NO. 50684/2017

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BETWEEN:

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SMT. VENKUBAI SINCE DEAD REPRESENTED BY HER LEGAL REPRESENTATIVES PETITIONER NO. 1 TO 6

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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SMT K SARASWATHAMMA D/O LATE S KRISHNAMURTHY AND W/O SRI K G ANANTHARAMU AGED ABOUT 63 YEARS, R/AT NO.46, DVG ROAD GANDHI BAZAR CIRCLE BASAVANAGUDI BANGALORE-560004.

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SMT K VANAJAKSHI D/O LATE S KRISHNAMURTHY AND W/O SRI N H RAO AGED ABOUT 58 YEARS

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NC: 2023:KHC:29813 WP No. 50684 of 2017 C/W WP No. 41200 of 2017

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SMT K CHANDRAKANTHA D/O LATE S KRISHNAMURTHY AND W/O SRI N JANARDHAN RAO AGED ABOUT 56 YEARS

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SMT K SUNANDA D/O LATE S KRISHNAMURTHY AND W/O SRI S K RAJU AGED ABOUT 47 YEARS

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PETITIONERS NO. 1 TO 4 ARE R/AT NO.210, 4TH CROSS NAGASHETTYHALLI BANGALORE-560094.

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SMT K SAVITHA D/O LATE S KRISHNAMURTHY AND W/O SRI K SURESH AGED ABOUT 44 YEARS, R/AT NO.688 1ST E-MAIN ROAD GIRINAGAR 2ND PHASE BANGALORE-560085

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THE PETITIONER NOS. 1 TO 5 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER SRI K SURSH S/O LATE S KRISHNAMURTHY R/AT NO.26, SRI KRISHNA NILAYA S KRISHMAMURTHY LAYOUT 1ST A MAIN ROAD CIL WEST END SANJAYANAGARA BANGALORE-560094.

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SRI K SURESH S/O LATE S KRISHNAMURTHY

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NC: 2023:KHC:29813 WP No. 50684 of 2017 C/W WP No. 41200 of 2017

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AGED ABOUT 50 YEARS R/AT NO.26 SRI KRISHNA NILAYA S KRISHMAMURTHY LAYOUT 1ST A MAIN ROAD CIL WEST END SANJAYANAGARA BANGALORE-560094.

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…PETITIONERS

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(BY SRI.D.R. RAJASHEKHARAPPA., ADVOCATE)

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AND:

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SRI.P.SUBRAMANYAM S/O SRI MUNIRATHNAM NAIDU AGED ABOUT 50 YEARS, PROPRIETOR M/S MAMATHA ESTATES PROMOTERS AND DEVELOPERS R/AT NO.502, GROUND FLOOR 8TH MAIN ROAD, 10TH CROSS SADASHIVANAGARA BANGALORE-560080.

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SRI VINAYAKA

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SINCE DEAD BY HIS LRS

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(a) SMT SUJATHA W/O LATE VINAYAKA AGED ABOUT 38 YEARS,

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(b). KUMARI MEGHA D/O LATE VINAYAKA AGED ABOUT 16 YEARS

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SINCE MINOR REPRESENTED BY

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HER MOTHER AND NATURAL GUARDIAN SMT SUJATHA

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BOTH ARE R/AT NO.13/1 1ST CROSS, GUNDAPPA BLOCK M.R.PALYAM BANGALORE-560046.

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03 SRI. K.N. JANARDHANA S/O SRI K.G. NAGARAJAIAH AGED ABOUT 43 YEARS R/AT NO. 119/A HOSMANE NARAYANAPPA STREET GOWDARA RAMAIAH LAYOUT KOGILU VILLAGE YALAHANKA, BANGALORE - 560 64. (AMENDED VIDE COURT ORDER DATED 12.10.2022)

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…RESPONDENTS

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(R1 SERVED; VIDE ORDER DATED 07.09.2021; NOTICE TO R2(a) IS HELD SUFFICIENT; R2(b) IS MINOR REPRESENTED BY R2(a) SRI. D. NAGARAJ, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS, DATED 23.10.2017 MADE BY THE PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE ON I.A.26, 27 AND 28 IN O.S.1403/2005 ON HIS FILE VIDE ANNEX-AK TO THIS W.P.

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NC: 2023:KHC:29813 WP No. 50684 of 2017 C/W WP No. 41200 of 2017

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IN WP NO. 41200/2017

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BETWEEN:

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SMT VENKUBAI SINCE DEAD REPRESENTED BY HER LEGAL REPRESENTATIVE PETITIONER NOS 2 TO 7

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SMT K SARASWATHAMMA,

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1. D/O LATE S KRISHNAMURTHY, AND W/O SRI K G ANANTHARAMU AGED ABOUT 63 YEARS, R/AT NO.46, DVG ROAD, GANDHI BAZAR CIRCLE BASAVANAGUDI, BANGALORE-560 004.

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SMT K VANAJAKSHI D/O LATE S KRISHNAMURTHY AND W/O SRI N H RAO, AGED ABOUT 58 YEARS,

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SMT K CHANDRAKANTHA D/O LATE S KRISHNAMURTHY AND W/O LATE SRI N JANARDHAN RAO, AGED ABOUT 56 YEARS,

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SMT K SUNANDA D/O LATE S KRISHNAMURTHY, AND W/O SRI S K RAJU, AGED ABOUT 47 YEARS,

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PETITIONERS NOS. 2 TO 4 ARE R/AT NO.210, 4TH CROSS, NAGASHETTYHALLI,

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NC: 2023:KHC:29813 WP No. 50684 of 2017 C/W WP No. 41200 of 2017

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BANGALORE-560 094.

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SMT K SAVITHA D/O LATE S KRISHNAMURTHY, AND W/O SRI K SRUESH, AGED ABOUT 44 YEARS, R/AT NO.688 1ST E-MAIN ROAD, GIRINAGARA 2ND PHASE, BANGALORE-560 085.

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THE PETITIONER NOS. 2 TO 5 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER SRI K SURESH S/O LATE KRISHNAMURTHY THE PETITIONER NO.7, R/AT NO.26, "SRI KRISHNAMURTHY LAYOUT, 1ST A MAIN ROAD, CIL WEST END SANJAYANAGARA BANGALORE-560 094.

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SRI K SURESH S/O LATE S KRISHNAMURTHY AGED ABOUT 50 YEARS, R/AT NO.26, "SRI KRISHNA NILAYA" S KRISHNAMURTHY LAYOUT, 1ST "A" MAIN ROAD, CIL WEST END SANJAYANAGARA BANGALORE-560 094.

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(BY SRI. RAJASHEKHARAPPA D R.,ADVOCATE)

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…PETITIONERS

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AND:

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SRI P SUBRAMANYAM S/O SRI MUNIRATHNAM NAIDU, AGED ABOUT 50 YEARS, PROPRIETOR, M/S MAMATHA ESTATES PROMOTERS AND DEVELOPERS R/AT NO.502 GROUND FLOOR, 8TH MAIN ROAD, 10TH CROSS, SADASHIVANAGARA, BANGALORE-560 080.

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SRI VINAYAKA

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SINCE DEAD BY HIS LRS

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2(a) SMT SUJATHA, W/O LATE VINAYAKA, AGED ABOUT 38 YEARS,

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2(b). KUMARI MEGHA D/O LATE VINAYAKA, AGED ABOUT 16 YEARS, SINCE MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT SUJATHA RESPONDENT 02 (a)

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BOTH ARE R/AT NO. 13/1, 1ST CROSS, GUNDAPPA BLOCK, M.R. PALYAM, BANGALORE-560 046.

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…RESPONDENTS

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(R1 SERVED; VIDE ORDER DATED 01.02.2022

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NOTICE TO R2(a) IS HELD SUFFICIENT; R2(b) IS MINOR REPRESENTED BY R2(a))

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 31.7.2017 MADE BY THE PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE ON I.A.NO.23 IN O.S.NO.1403/2005 ON HIS FILE VIDE ANNEX-A TO THIS W.P.

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THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These petitions are by the plaintiffs in O.S.No.1403/2005 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru [for short, ' the civil Court ]. The petitioners are aggrieved by the civil Court's orders dated 31.07.2017 and 23.10.2017. The civil Court by the first order dated 31.07.2017¹ has rejected the petitioners' application [I.A.No.23] under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short, ' CPC' ] for

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1 This order is impugned in the writ petition in W.P.No.41200/2017

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amendment of the plaint, and the civil Court by the next impugned order dated 23.10.2017² has rejected the petitioners' applications (I.A.Nos.26 to 28). The petitioners have filed these applications for recalling the order dated 05.09.2017, reopening the case and to implead Sri. K. N. Janardhan [the third respondent in W.P.No.50684/2017] as an additional defendant.

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The petitioners' case is that Sri S.

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Krishnamurthy was the absolute owner of the land measuring 5 acres 31 guntas in Sy.No.15/1 of Kogilu Village, Yelahanka Hobli, Bengaluru North Taluk and he got this land converted from agricultural purposes way back in the year 1968. Sri. S. Krishnamurthy has died on 25.05.1976 intestate and upon his demise, they have succeeded to the aforesaid property. They have entered into a Joint Development Agreement on 14.05.1995 with the first respondent but without conferring any authority in

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2 This order is impugned in the writ petition in W.P.No.50684/2017

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him to sell any portion of this property, and notwithstanding the same, the first respondent has executed the sale deed dated 07.11.2003 for the subject property [ a portion of the said property ] in favor of Sri. Vinayaka [ the second defendant who is now deceased ].

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The petitioners further assert that during

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the pendency of the suit, a construction is put up in the subject property, and they were under the impression that the legal representatives of Sri. Vinayaka had forcibly entered possession of the property and put-up construction, but on ascertaining that it was not these respondents but Sri. K. N. Janardhan [ hereafter referred to as the third respondent ], they have filed the said applications for impleadment of the third respondent and amendment of the plaint. The petitioners have proposed amendment of the plaint to include the prayer for recovery of possession of the subject property but

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without challenging the sale deed dated 14.10.2011, and their other applications are for reopening and recall of their witness to bring on record the aforesaid circumstances by way of further evidence.

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The civil Court has rejected the

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petitioners’ applications, including the application for amendment, primarily for the reason that the suit was listed during the months of March and April 2016 and if the petitioners were bonafide, they could have filed their applications during this time. The civil Court has also opined that if the legal heirs of the second respondent have forcibly dispossessed the petitioners during the pendency of the suit, it could always mould the relief as permissible under Order VII Rule 17 of CPC, and insofar as the request for reopening and recall of their witness, the civil Court has observed that this witness has been elaborately cross examined and the defendants have also commenced their evidence.

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At this stage, this Court must record that

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the petitioners have filed an application before this Court for amendment of the plaint to include the prayer for declaration that the sale deed dated 14.10.2011 executed by the legal heirs of the second respondent is void in aid of the proposed amendment in I.A.No.23³ . The fulcrum for the petitioners' applications is the assertion that they were under the impression that the second defendant’s legal representatives had forcibly entered possession of the subject property and put up the construction, but they could only later ascertain that such construction is by the third respondent asserting right under the sale deed dated 14.10.2011 executed in his favor by the legal representatives of the second defendant.

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Sri. D.R.Rajashekharappa, the learned

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counsel for the petitioners arguing in support of the

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3 This Court on 08.08.2023 had extended an opportunity to the respondents to demonstrate why the petitioners must not be permitted to amend the plaint to include to challenge the sale deed sale deed dated 14.10.2011.

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applications including the application for amendment of the plaint as now filed in the present proceedings, submits that the relevant information was not within the petitioners' knowledge, and the petitioners are bonafide in submitting this, and that though the second respondent – Sri. Vinayak’s Power of Attorney is examined as DW.2, the evidence of this witness is not completed. He argues that this Court must allow the applications leaving open all the contentions to be urged by the respondents to enable complete and final adjudication in the suit.

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Sri. D.Nagaraj, the learned counsel for the third respondent, submits that the applications for impleadment and recall of the witness could be allowed but the civil Court has rightly considered the application for amendment. He argues that even according to the petitioners, the sale deed dated 14.10.2011 in favour of third respondent is during the pendency of the suit and it would be open to

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them to argue that the sale deed is hit by the doctrine of lis pendens and therefore, the amendment to include the prayer for possession or impugn the sale deed dated 14.10.2011 would not be necessary. He emphasizes that the petitioners' relief as against the sale deed dated 14.10.2011 and to recover possession of the subject property could be time barred.

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These rival submissions are considered in

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the backdrop of the peculiar circumstances of the case. The petitioners’ case as now pleaded is that they have not constituted the first respondent as their attorney with any authority to sell any portion of the larger land much less the suit schedule property, notwithstanding the same the first respondent has executed the sale deed dated 07.11.2003 in favor of Sri. Vinayaka. The present circumstances are that after the demise of Sri Vinayaka, his legal heirs have executed the sale deed dated 14.10.2011 in favor of the third respondent

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and the third respondent has put up construction in the subject property.

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Even if there is a decision on the first

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aspect, unless there is a decision on the second aspect [which is essentially because of subsequent events] as well, there cannot be complete and effective adjudication. Further, the adjudication must be with the pleadings being comprehensive and with opportunity to parties to lead evidence on all aspects. There is nothing on record to doubt the petitioners’ bonafides in pleading that they were initially under the impression that the second respondent’s legal heirs have put up construction in the subject property.

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This Court, in these circumstances, is of the considered view that no pedantic approach can be taken, and the petitioners should not only be permitted to examine their witness for completion of the evidence, even the application for amendment as

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filed before the civil Court in I.A. No.23 and the application filed before this Court must be allowed with liberty to all the respondents to file written statement/additional written statement as the case may be leaving open all the questions including the question of limitation as against prayer for declaration that the sale deed dated 14.10.2011 and for possession to be considered after the completion of the pleadings. However, in the circumstances of the case, the amendments cannot relate to the date of the suit but to the date of the respective applications, and the question of limitation must be considered accordingly. Hence the following:

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ORDER

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[a] The petitions are allowed, and the

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application for amendment [I.A. No.23

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in W.P.No.41200/2017], the

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applications for recall and reopening

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[I.A. Nos.26 and 27 in W.P.No.50684/2017] and the

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application for impleadment [I.A. No.28 in W.P.No.50684/2017] are allowed. The application [I.A. No.1/2023] filed in the present proceedings, is also allowed and Consequentially, the petitioners are permitted to amend the plaint to include the following:

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A - “To add the following paragraph after paragraph No.14 at page 6 of the plaint:

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14(A) After Institution of the suit, from the first week of March, 2016 the legal representatives of the second defendant have commenced putting up construction of building on the schedule property and thereby they have effectively dispossessed the plaintiffs’ from the schedule property. In as much as the sale of the schedule property to the second defendant by the first defendant is void and illegal, the possession of the

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schedule property in the hands of the second defendant is also illegal.”

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B. – “To add the following prayer after prayers V(a) and V[b] in the prayer column of the plaint:

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(V) (a) - To declare that the Sale Deed dated 14.10.2011 executed by Defendant Nos.2[a] and 2[b] in favour of Sri K N Janardhana, in respect of the plaint schedule property as per the Document, bearing No.YAN-103858-2011-12, and stored in CD No.YAND 372, Book-I and registered in the Office of the Senior SubRegistrar, Yelahanka, Bengaluru, as null and void and not binding on the plaintiffs.

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(V) (b) as relief consequential to the relief (i), direct the second defendant to deliver possession of the schedule property.”

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[b] The petitioners shall carry out

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amendment as now permitted within fifteen [15] days from the date of the

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first appearance before the civil Court

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after this order.

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[c] The respondents are reserved liberty

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to file written statement/additional

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written statement as the case may be.

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Sd/JUDGE

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RB, AN

Smt. Venkubai v. Sri.P.Subramanyam

Case brief

What is this about?

What did the court decide?

Smt. Venkubai v. Sri.P.Subramanyam

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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