Partly allowed

Smt. Shwetha S v. Sri. Yathin Gowtham. U

Karnataka HC8 Nov 2024MFA/2785/2024

Case brief

AI extract

What is this about?

Appeal against rejection of temporary injunction in a declaration suit over a site derived from sale deeds by the original owner versus a compromise partition decree obtained later by his heirs. The High Court allowed restraint on alienation but refused to restrain construction already completed.

What did the court decide?

I.A.No.1 allowed restraining respondents from alienating the suit property till disposal of the suit; I.A.No.2 allowed in part declaring respondents cannot claim equity if appellant succeeds.

Smt. Shwetha S Vs Sri. Yathin Gowtham. U — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF NOVEMBER, 2024

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BEFORE

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

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M.F.A. NO.2785/2024 (CPC)

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BETWEEN:

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SMT. SHWETHA S., D/O SRI SHIVAJI RAO S.Y., W/O SRI MAHENDRANATH, AGED ABOUT 40 YEARS, RESIDING AT NO.303, ‘TUSHAR REGENCY’, 1^ST MAIN, 3^RD CROSS, HOLY CROSS SCHOOL ROAD, MALLESHPALYA, BENGALURU-560 075.

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… APPELLANT

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(BY SRI R. SUBRAMANYA, ADVOCATE FOR SRI RAJU S., ADVOCATE)

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AND:

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SRI YATHIN GOWTHAM. U., S/O SRI B.UTTAM KUMAR, AGED ABOUT 27 YEARS, R/AT NO.404, BILVASHREE NILAYA, 9^TH CROSS, 1^ST MAIN ROAD, PANCHASHEELA NAGAR, MUDALAPALYA, BENGALURU - 560 072.

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SMT. PREETHI G.K. W/O SRI MANJUNATH D.R. AGED ABOUT 36 YEARS, R/AT NO.36,

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DONKIHALLI, KALKERE, TURUVEKERE TALUK - 572221. … RESPONDENTS

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(BY SRI MANJUNATH H., ADVOCATE FOR R1 & R2)

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THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 25.04.2024 PASSED ON I.A.NOS.1 AND 2 IN O.S.NO.2391/2024 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING THE I.A.NO.1 AND 2 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.10.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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CAV JUDGMENT

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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This miscellaneous first appeal is filed against the rejection of I.A.Nos.1 and 2 filed under Order 39 Rules 1 and 2 of CPC passed in O.S.No.2391/2024 dated 25.04.2024, praying this Court to set aside the orders.

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The factual matrix of the case of the

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appellant/plaintiff before the Trial Court is that the suit is filed for the relief of declaration and other consequential injunction on the ground that the appellant is the absolute owner of the

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property, which is morefully described in the schedule and the property now comes under the BBMP and all revenue records stands in the name of the plaintiff. It is contended that the plaintiff became the owner of the property by virtue of registered gift deed dated 03.08.2020. It is contended that the schedule property carved out of Sy.No.67 measuring 4 acres 24 guntas originally belongs to one late G.H.Bangera, who is the grandfather of respondent No.1, acquired under the registered sale deed dated 15.04.1971. Subsequently, he sold the entire extent under four registered sale deeds dated 23.09.1996 in favour of the original vendor of this property Sri M.D. Ramakrishnaiah and other three persons. The said M.D. Ramakrishnaiah has acquired an extent of 1 acre 10 guntas out of 4 acres 24 guntas and formed the layout in entire Sy.Nos.67, 281 and 282 with the consent of other owners, who had purchased the property from G.H.Bangera. The said property was converted for residential purpose and after the formation of the layout, the said M.D. Ramakrishnaiah sold site No.16 measuring east to west 39 ft. and north to south 30 ft. in favour of Sri Naveen Kumar and Smt. K.R.Shilpa under the registered sale deed dated 08.07.2010. Thereafter, both of them sold the

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same to one Shivaji Rao vide sale deed dated 15.06.2012 and he was paying the tax and he gifted the schedule property to the appellant, who is his daughter. The plaintiff is exercising her absolute right over the suit schedule property. It is contended that respondent No.2 trespassed into the suit schedule property and illegally trying to put up the construction on the schedule property on 20.02.2024 without any rights. Immediately, when it was verified before the Sub-Registrar it was noticed that the father of respondent No.1, who is the son of G.H.Bangera in collusion with other children have created a compromise decree in O.S.No.5442/2009 on the strength of the revenue entries and subsequently got created the gift deed in favour of respondent No.1 on 19.05.2023 and thereafter the sale deed was created in favour of respondent No.2 on 07.12.2023 in respect of the very schedule property. The respondent No.2 illegally trespassed into the schedule property and started putting up the construction. Noticing the said illegal act of respondent No.2, the appellant approached the Trial Court seeking for declaration of her title and possession and interalia, filed two applications i.e., I.A.Nos.1 and 2 under Order 39 Rules 1 and 2 of CPC seeking temporary injunction restraining respondent No.2 from alienating or

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creating any third party rights and also restraining from putting up any construction.

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The said I.As. are resisted by filing statement of

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objections by the defendants contending that the suit filed by the plaintiff assailing the validity and correctness of compromise decree passed in O.S.No.5442/2009 without impleading the parties to the said compromise decree in the present suit is not maintainable. The said suit was dismissed and the same has not been challenged and it has attained its finality. It is also contended that when there is a compromise decree and decree is granted by the Court and when the plaintiff has stepped into the shoes of the alleged vendor and as such, she cannot maintain a separate suit and the suit is barred under Sections 10 and 11 of CPC and when the suit itself is not maintainable, she cannot seek any relief and also not entitled for any temporary injunction. It is contended that the sale deeds which are relied upon by the plaintiff are bogus, concocted and created sale deeds and the very execution of the sale deed by their father are disputed and the plaintiff got the property by way of gift, since the plaintiff’s father had purchased the property and having absolute right gifted the property on 19.05.2023 and defendant No.1 has sold

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the schedule property in favour of defendant No.2 by sale deed dated 07.12.2023 and defendant No.2 is in lawful possession and enjoyment of the schedule property.

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The Trial Court having considered the grounds urged, formulated the points whether the plaintiff has made out a prima case and balance of convenience and whether the plaintiff would be put to irreparable loss and injury, if an order of temporary injunction is not granted. The Trial Court having considered both the I.As. together, answered point No.1 in the negative and answered point Nos.2 and 3 as does not survive for consideration and rejected the same.

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Being aggrieved by the rejection of the two I.As., the present appeal is filed before this Court.

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The main contention of the appellant before this Court is that there is no dispute with regard to the fact that one G.H.Bangera was the original owner of the schedule property to an extent of 4 acres 24 guntas, which he had purchased on 15.04.1971. The learned counsel contend that subsequently he sold the entire extent to different persons and one Sri M.D. Ramakrishnaiah, who had purchased to an extent of 1 acre 10

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guntas, with the consent of other purchasers formed the sites and sold the same and once the property was sold, the question of filing a suit for the relief of partition does not arise and suppressing the same obtained the fraudulent decree of partition. The learned counsel contend that the said decree was drawn in respect of share of Uttam Kumar and he claims site No.16 had fallen to his share and he had gifted the same in favour of Yathin Gowtham on 18.05.2023, who is none other than the son of Uttam Kumar and grandson of G.H.Bangera. The learned counsel contend that when the property was sold, they filed collusive suit to deceive the rights of the persons, who purchased residential sites in the layout formed after G.H.Bangera sold the same and the suit was filed after the death of G.H.Bangera and indeed he did not retain any property. Neither the subsequent purchasers from G.H.Bangera nor the father of the appellant were arraigned as parties to the said suit and the said decree itself is fictitious and fraudulent and they indulged in creation of documents. It is also contended that the suit filed by Sri M.D. Ramakrishnaiah seeking declaration and injunction has been dismissed without determining the rights of the parties on merits and it was dismissed as not maintainable

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as he has to seek the relief under Order 23 Rule 3A of CPC and the same is not an adjudication and the matter has to be adjudicated before this Court when the relief is sought for declaration and hence the Trial Court committed an error in rejecting the applications.

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The learned counsel for the appellant in support of his arguments relied upon the judgment of the Hon’ble Apex Court in the case of PARAYYA ALLAYYA HITTALAMANI v. SRI PARAYYA GURULINGAYYA POOJARI AND OTHERS reported in (2007) 14 SCC 318 . Referring this judgment, the learned counsel would contend that compromise decree is not binding on the appellant and the same would bind the parties, who have signed the compromise. A non-signatory to the compromise petition and the decree drawn is not bound by the compromise petition. The compromise decree is an agreement between the parties with the seal of the Court.

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The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of SNEH GUPTA v. DEVI SARUP AND OTHERS reported in (2009) 6 SCC 194 and brought to the notice of this Court paragraph Nos.24 to 27,

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wherein discussion was made with regard to Order 23 Rule 3 of CPC that a compromise decree is not binding on such defendants who are not parties thereto. The Court has also a duty to prevent injustice to any of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. There is no need to challenge the compromise decree as it has no binding effect and no declaration is necessary.

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The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of HOWRAH DAW MANGLA HAT B.B. SAMITY v. PRONAB KUMAR DAW reported in (2001) 6 SCC 534 and relied upon paragraph No.22 of the judgment, wherein discussion was made with regard to the expressions “void” and “voidable” have been the subject matter of consideration on innumerable occasions by Courts. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning.

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The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of STATE OF UTTAR

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PRADESH AND OTHERS v. UNITED BANK OF INDIA AND

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OTHERS reported in (2016) 2 SCC 757 and brought to the notice of this Court paragraph No.48 of the judgment. The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of PRINCIPAL SECRETARY, GOVERNMENT OF KARNATAKA AND ANOTHER v. RAGINI NARAYAN AND ANOTHER reported in (2016) 10 SCC 424 and brought to the notice of this Court paragraph No.15, wherein discussion was made with regard to Section 47 of the Registration Act. It is held that the document registered on a subsequent date, operates from the date of execution, not from the date of registration.

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The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of KANWAR RAJ SINGH

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(D) THROUGH LRS. v. GEJO (D) THOURGH LRS AND

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OTHERS reported in (2024) 2 SCC 6416 and brought to the notice of this Court paragraph Nos.7, 9 and 12, wherein discussion was made with regard to that Section 47 of the Registration Act does not deal with the issue when the sale is complete. The Constitution Bench held that Section 47 applies to a document only after it has been registered, and it has

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nothing to do with the completion of the sale when the instrument is one of sale. It was also held that once a document is registered, it will operate from an earlier date, as provided in Section 47 of the Registration Act. The sale deed was registered with the interpolation made about the description/area of the property sold. The first defendant admittedly made the said interpolation after it was executed but before it was registered. In terms of Section 47 of the Registration Act, a registered sale deed where entire consideration is paid would operate from the date of its execution. Thus, the sale deed as originally executed will operate.

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Per contra, the learned counsel for the respondents in his argument would vehemently contend that the Trial Court considered the material available on record and taken note of the fact that earlier the said M.D. Ramakrishnaiah had filed a suit and the same was dismissed and the same attained its finality and now they cannot question the same and also made an observation that without challenging the judgment and decree passed in favour of the respondents, the very suit itself is not maintainable and hence the question of granting the relief does not arise. The learned counsel also produced the

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photographs, which depicts construction of entire building and half portion was plastered and remaining portion yet to be plastered and building has come up and question of granting the relief not to put up construction does not arise.

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The learned counsel in support of his argument relied upon the additional document of certified copy of deficit stamp duty paid receipt pertaining to sale deed dated 23.09.1996 allegedly between the grandfather of respondent No.1, namely G.H.Bangera and M.D. Ramakrishnaiah i.e., to the extent of executing the sale deed and also confirming the case is dropped on account of payment of deficit stamp duty. The learned counsel also produced the memorandum for fixing the market value of the property under Section 45A and the sending back of the document to the office of the Sub-Registrar for further action having received the stamp duty.

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The learned counsel also relied upon the judgment of this Court in the case of DIGAMBAR WARTY AND OTHERS v.

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DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT AND

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ANOTHER reported in ILR 2013 KAR 2099 , wherein it is held that if they have already sold their interest in the property under

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the registered sale deed, the purchaser gets no title because the seller acquired no title. Therefore, as a duty is cast on the seller to make good the title of the purchaser, even in the absence of the authority enforcing the right to recover the stamp duty, if proper stamp duty and penalty is paid, along with registration fee, it could be registered. That is the object behind this legislation. The learned counsel contend that when the document was referred for under valuation and the same is recoverable and brought to the notice of this Court paragraph Nos.67, 68, 69 and 70 of the judgment, wherein discussion was made with regard to the payment of stamp duty is concerned and contend that stamp duty is paid and document has been released.

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The learned counsel contend that the Trial Court has given the reasoning for dismissal of both the I.As. and brought to the notice of this Court paragraph No.13 of the Trial Court’s order, wherein clear discussion was made that suit filed by M.D. Ramakrishnaiah was dismissed and the same has attained its finality and cannot ignore the compromise decree, unless the same has been challenged and in the suit also no relief is sought in respect of the said judgment and decree and when the

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plaintiff having stepped into the shoes of M.D. Ramakrishnaiah is not entitled to contend that she is not a party to the said suit in O.S.No.6534/2011 and the decree passed therein is not binding on her and she is entitled to simply ignore the compromise decree and unless the validity, legality and correctness of the compromise decree has been decided, there cannot be any declaration and the present suit of the plaintiff without seeking the relief for setting aside the compromise decree is not maintainable and hence the question of making out a prima facie case does not arise and hence it does not require interference of this Court.

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Having heard the learned counsel for the appellant and the learned counsel for the respondents and having perused the grounds and reasoning of the Trial Court, the points that arise for the consideration of this Court are:

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(i) Whether the Trial Court committed an error in dismissing both the I.As., wherein relief is sought not to encumber and not to put up construction?

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(ii) What order?

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Having perused the material on record, it is not in dispute that G.H.Bangera had purchased the property in the year 1971 from one Mr.Joseph and the same was registered on 15.04.1971. It is not in dispute that the property was converted to the extent of 1 acre 10 guntas and the said property is bearing Sy.No.67. It is important to note that subsequent to converting of 1 acre 10 guntas, it is the claim of the plaintiff that the said G.H.Bangera had sold 1 acre 10 guntas in favour of M.D. Ramakrishnaiah and the said M.D. Ramakrishnaiah, with the consent of other three purchasers who had purchased the remaining property from G.H.Bangera, formed the layout and sold the property. It is the contention of the plaintiff that site No.16 was retained by M.D. Ramakrishnaiah and he sold the same in favour of Naveen Kumar and Naveen Kumar in turn sold the property in favour of Shivaji Rao in 2012 and the said Shivaji Rao gifted the property in favour of the appellant on 03.08.2020. The main contention of the defendants is that no such sale deeds are executed by G.H.Bangera and those sale deeds are created. Whether those sale deeds are created or not, the matter has to be adjudicated.

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It is also not in dispute that the parties in O.S.No.5442/2009 filed the suit for the relief of partition in the year 2009 i.e., subsequent to the alleged sale made by G.H.Bangera in favour of four persons and they obtained the decree by compromising the same on 28.10.2009. In terms of compromise, it is the contention that site No.16 was allotted in favour of Uttam Kumar, who is the son of G.H.Bangera and in turn the said Uttam Kumar gifted the said site in favour of his son Yathin Gowtham, vide gift deed dated 19.05.2023. The moot question involved in the matter is whether the said G.H.Bangera had sold the entire extent of 4 acres 24 guntas in favour of different persons and the validity of the judgment and decree also to be looked into in a suit filed for the relief of declaration. The said M.D. Ramakrishnaiah had filed a suit seeking the relief of injunction and declaration and the same was dismissed on the ground that he has to approach the Court by filing an application under Order 23 Rule 3A of CPC and no doubt, he did not question the dismissal of the suit and it has attained its finality. But the fact is that he had already sold site No.16 in favour of Naveen Kumar on 08.07.2010 and the suit

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filed by him in O.S.No.6534/2011 was dismissed subsequently

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after selling the property. No doubt, in the present suit the relief is not sought in respect of the judgment and decree and only on that ground the Court cannot decline to grant the relief of temporary injunction and the very purpose and object in granting the temporary injunction is to prevent the multiplicity of the proceedings. The very conclusion of the Trial Court that when the suit itself is not maintainable, unless the relief is sought for declaring the judgment and decree is null and void is erroneous. The Court has to take note of the prima facie material that the property originally belongs to G.H.Bangera is not in dispute. The registered sale deeds are produced before the Court for having executed the sale deed. When such being the case, the Court has to take note of the conduct of the respondents, who had filed O.S.No.5442/2009 subsequent to the selling of the property and the plaintiff can seek for other relief in the suit and if the property is sold, if the respondents have taken up construction, it will lead to multiplicity of proceedings and the same has not been taken note of by the Trial Court. The Trial Court ought to have granted the relief of temporary injunction not to alienate the suit schedule property, as it may lead to multiplicity of proceedings. The Trial Court lost sight of

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that the sale deeds are executed by the original owner G.H.Bangera and thereafter suit was filed for the relief of partition among the legal heirs of G.H.Bangera and during the lifetime of G.H.Bangera, no such suit was filed and after his death only the suit was filed and got partitioned the property.

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The other relief sought is not to put up construction and admittedly the respondents have already put up the construction and the photographs which have been produced before the Court evidence the fact that already building has been completed and plastering work has to be done. The Court has to decide with regard to the declaration and consequential injunction. Even if any application is filed for other relief also, the Court can adjudicate the same. When such being the case, when construction is made and photographs depicts the same, the question of granting the relief of temporary injunction restraining the respondents from putting up construction does not arise and building has already come up. However, it is made clear that the respondents/defendants cannot claim equity, if the plaintiff succeeds in the suit and hence the order of the Trial Court requires to be modified and accordingly point for consideration is answered.

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21. In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) Consequently, I.A.No.1 is allowed restraining the respondents from alienating the property, till the disposal of the suit.

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(iii) Insofar as I.A.No.2 is concerned, it is made clear by allowing the application in part that the respondents cannot claim equity, if the appellant succeeds in the suit.

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Sd/(H.P. SANDESH) JUDGE

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Smt. Shwetha S v. Sri. Yathin Gowtham. U

Case brief

What is this about?

What did the court decide?

Smt. Shwetha S v. Sri. Yathin Gowtham. U

Case brief

What is this about?

What did the court decide?

What the court decided

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