Dismissed

Gangamma v. Sri. Govindaraj T v

Karnataka HC20 Feb 2024WP/11064/2018

Case brief

AI extract

What is this about?

This Writ Petition sought to quash a 2017 Order dismissing an application to set aside a 2002 compromise decree on the ground that it violated a 15-year restriction on alienating inamathi property. The High Court held the application was time-barred by Article 137 of the Limitation Act and dismissed the petition, noting the petitioner signed the compromise and subsequent sale deed despite the alle

What did the court decide?

The writ petition was dismissed; the order dated 21.09.2017 rejecting the application to set aside the compromise decree stands confirmed.

Gangamma Vs Sri. Govindaraj T v — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:7066 WP No. 11064 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 11064 OF 2018 (GM-CPC)

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BETWEEN:

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GANGAMMA D/O LATE PILLAPPA

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DAUGHTER-IN-LAW OF KONDAMMA,

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AGED ABOUT 68 YEARS.

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SUBBARAYA, S/O GANGAMMA, AGED ABOUT 45 YEARS.

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THIMAKKA D/O GANGAMMA AGED ABOUT 38 YEARS.

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MUNIYAMMA D/O. KONDAMMAN AGED ABOUT 86 YEARS.

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Digitally signed by PAVITHRA N Location: High Court of Karnataka

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MUNILAKSHMAMMA, D/O. KONDAMMA, AGED ABOUT 75 YEARS.

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ALL ARE MAJORS, R/AT HORAMAVU AGRAHARA, K.R. PURAM HOBLI, BANGALORE SOUTH TALUK. BENGALURU - 560 036.

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…PETITIONERS

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(BY SRI: SURESH S. LOKRE SR. ADVOCATE FOR

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SRI: SHRAVAN S. LOKRE, ADVOCATE)

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AND:

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SRI GOVINDARAJ T.V. S/O VENKATASWAMY, AGED ABOUT 69 YEARS,

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R/AT MARUTHAHALLI VILLAGE, MARUTHAHALLI POST, BANGALORE SOUTH TALUK PIN - 560 037.

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SMT. BAGYALAKSHMI, D/O SRIKRISHNA, MAJOR IN AGE, R/O HORAMAVU AGARA VILLAGE, K.R. PURAM HOBLI, BANGALORE SOUTH TALUK PIN - 560 036.

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SMT. GUNDAMMA W/O. PILLAPPA (SINCE DECEASED REPRESENTED BY HER LRS.)

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SMT. SAVITHRI D/O GUNDAMMA AGED 40 YEARS,

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SMT. RUKMINI D/O GUNDAMMA AGED 40 YEARS,

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SMT. RADHA D/O GUNDAMMA AGED 35 YEARS,

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RESPONDENT NO. 4 TO 6 ARE R/AT NEELSANDRA, NEAR BUS STAND, BENGALURU - 560 047.

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…RESPONDENTS

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(BY SRI.S KALYAN BASAVARAJ.,ADVOCATE OR R7 V/O. DTD 13/04/2018 R3 TO 6 D/W V/O. DTD 28/08/2023, R1 & 2-H/S)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THE ABOVE WRIT PETITION. QUASH THE IMPUGNED ORDER UNDER ANNEXURE-A PASSED UNDER I.A.8 ON 21.09.2017 BY THE XI ADDITIONAL CITY CIVIL AND JUDGE, BANGALORE CITY, IN O.S.3811/1998 AND ETC.,

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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Defendant Nos.4, 6 to 9 in OS No.3811 of 1998 on the file

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of the learned XI Additional City Civil Judge, Bengaluru, are seeking grant of writ in the nature of certiorari to quash the impugned order dated 21.09.2017, rejecting IA No.8 filed under Order XXIII Rule 3A read with Section 151 of CPC, refusing to set aside the compromise decree dated 17.04.2002.

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Heard Sri. Suresh S Lokre, learned senior advocate along with Sri. Shravan S Lokre, learned counsel for the petitioners and Sri. S Kalyan Basavaraj, learned counsel for the respondent No.7. Perused the materials on record.

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Learned senior advocate for the petitioners contended that respondent No.1 as plaintiff filed the suit OS No. 3811 of 1988 against defendant Nos.1 to 10 for specific performance of the contract. It is alleged that defendant No.10 as the Power of Attorney holder of defendant Nos. 1 to 9 executed an agreement to sell in respect of the schedule property in favour of the plaintiff. Since the defendants have not came forward to execute the sale deed, suit came to be filed. Defendant Nos. 1 to 9 were placed ex-parte; it was only

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defendant No.10 who appeared before the Trial Court. Later, on 21.04.2001 the case was advanced from 10.07.2001 and a compromise petition was said to have been signed by the defendants and the plaintiff came to be filed. Even though the defendants have subscribed their signatures/left thumb impressions on the compromise petition and also on the order sheet, they were not knowing the terms of compromise petition. The Trial Court has not recorded the compromise on the date when it was filed. It raised certain queries and posted the matter to a subsequent date. About a year thereafter, on 17.04.2002, the Trial Court accepted the compromise and drawn the decree on the basis of so-called compromise. No clarification was sought and the satisfaction of the Court was recorded before accepting the terms of compromise. The signatures of the parties were not obtained on the order sheet on 17.04.2002, nor the parties were present on that day. Therefore, it is a clear case of fraud played on defendants, who have subscribed their signature/left thumb impression on the compromise petition and the order sheet without knowing its contents. Therefore, defendant Nos.4, 6 to 9 have filed IA No.VIII under Order XXIII Rule 3A of CPC on 10.07.2015

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seeking to set aside the compromise decree. The same was dismissed by the Trial Court by passing the order dated 21.09.2017 by dismissing the application. Therefore, the petitioners are before this Court.

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Learned senior advocate further submitted that the petitioners before this Court are defendant Nos.4, 6 to 9 in the original suit. Since the sale deed was not executed by the defendants, the plaintiff filed Ex.Case.No.1017 of 2002 seeking execution of the sale deed. The sale deed was executed through the process of Court on 24.03.2003.

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Learned senior advocate further submitted that as

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per the agreement to sell, the total consideration amount was Rs.8,00,000/-, out of which only Rs.6,50,000/- was said to have been paid as advance. In the compromise petition, there is reference to payment of the portion of the sale consideration amount, i.e., Rs.1,00,000/-. But the Court has not inquired with the defendants as to whether they have received the said amount. Unless the payment of the amount stated in the compromise petition was confirmed, the Trial Court could not have recorded the compromise.

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Learned senior advocate placed reliance on the

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decision of the Hon'ble Apex Court in M/S.Kapil Corepacks Pvt.Ltd.& Ors vs Harbans Lal (D) Thr.Lrs¹ in support of his contention that under Order X Rule 2 of CPC it is the bounden duty of the Court to examine the party to satisfy itself about the terms of the compromise. In the present case, mechanically, the Trial Court proceeded to accept the compromise petition on 17.04.2002 on the basis of an order passed on 21.04.2001 i.e., about a year before.

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Learned senior advocate submits that the materials placed before the Court disclose that the plaintiff and defendant No.10 in collusion with one another, executed the agreement for sale and also filed the suit where the compromise petition was filed, got the suit decreed, filed the execution case and got the sale deed executed. It is the petitioners who are in possession of the property till date. Therefore, the petitioners have filed the application under Order XXIII Rule 3A of CPC, seeking to set aside the compromise decree.

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1 2010 8 SCC 452

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Learned senior advocate submitted that the land in

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question was granted in favour of Kondamma, grandmother of defendant Nos. 1 to 9 on 06.07.1992. The agreement to sell was executed on 20.01.1997 and the sale deed was executed on 24.03.2003 i.e., within the period of restriction on alienation, i.e., 15 years. Therefore, the compromise decree passed by the Trial Court is liable to be set aside.

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Learned senior advocate further submitted that even though some of the defendants have filed the suit OS No.8352 of 2006 seeking partition and separate possession and for declaration that the sale deed obtained through Court is void-ab-initio and challenged the compromise decree on various grounds, the said suit came to be dismissed. Challenging the same, the defendants have preferred RFA No.1486 of 2015. The said appeal came up for consideration before this Court on 05.12.2023, wherein, the Court recorded a finding that since the writ petition is pending consideration on

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the application filed under Order XXIII Rule 3A of CPC, it is open for the parties to urge all their contentions in the said writ petition and accordingly, the first appeal was dismissed. In view of all these facts and circumstances, the only course open

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to the petitioners is to challenge the compromise decree under Order XXIII Rule 3A of CPC. Hence, he prays for allowing the petition by setting aside the compromise decree referred to above.

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Per contra, learned counsel for respondent No.7 submits that the plaintiff in OS No.3811 of 1998 entered into an agreement for sale with the defendants in the said suit on 31.03.1995. Since the sale deed was not executed, the suit OS No. 3811 of 1998 was filed. Even though, initially the defendants, including these petitioners, were placed ex-parte, subsequently, they have appeared before the Court represented by an advocate. All the parties to the suit have filed the compromise petition, agreeing to the terms mentioned therein. Filing of vakalath on behalf of defendant Nos. 1 to 9 and signing the compromise petition was never in dispute. The Court recorded its satisfaction, after verifying with the parties, about their consent to decree the suit in terms of the compromise. Same was recorded in the order sheet. Thereafter, certain clarifications were sought regarding the prohibition period of 15 years for alienating the property. Therefore, the plaintiff in the said suit filed his written

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submission along with the endorsement issued by the Assistant Commissioner, wherein, it is categorically stated that the period of prohibition had already lapsed and there was no necessity

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for obtaining the permission to alienate the property. On being satisfied with the contentions taken by the parties, the Trial Court proceeded to record the compromise on 17.04.2002 and accordingly, compromise decree was drawn.

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Learned counsel submitted that since the sale deed

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in accordance with compromise decree was not executed, the plaintiff in the said suit filed Ex.Case.No.1017 of 2002 and later on, the sale deed was got executed through the process of Court on 24.03.2003. Subsequently, respondent No.7 purchased the schedule property from the original plaintiff under the registered sale deed dated 05.02.2004. Respondent No.7 is the bonafide purchaser of the property and it amounts to creation of third-party interest.

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Learned counsel submitted that initially, the petitioners have obtained the endorsement dated 20.12.1996 from the Assistant Commissioner regarding the restriction on alienation, wherein, it is stated that the said restriction has

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already expired on 07.08.1998. Thereafter, the petitioners filed the suit OS No.8352 of 2006 seeking partition and separate possession. They have also contended that the decree referred to above was obtained by fraud and the compromise decree was void-ab-initio. Issue No.3 and additional issue No.1 was framed in the said suit on the basis of the pleadings of the parties. The suit came to be dismissed on 19.06.2015 by answering the issues against the petitioners.

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Learned counsel further submitted that the petitioners have preferred an appeal before the Deputy Commissioner, challenging the endorsement issued by him regarding the expiry of the period of restriction and the said appeal was came to be dismissed as per the order dated 06.08.2012. After exhausting all these remedies since from 1986 till 2012, the application under Order XXIII Rule 3A of CPC was filed before the Trial Court on 10.07.2015. In all these proceedings, the petitioners categorically admitted that they have signed the vakalath, engaged the service of the advocate, appeared before the Court. They even admitted the terms of the compromise petition and signed it and the the order sheet. Under such circumstances, they cannot succeed

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by filing an application seeking to set aside the compromise decree, now contending that there was fraud and misrepresentation that was committed against them.

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Learned counsel further submitted that the affidavit

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filed accompanying the application under Order XXIII Rule 3A of CPC was very bald and nothing has been stated about any of the developments regarding getting endorsement by the Assistant Commissioner, challenging the same before the Deputy Commissioner and filing the suit for partition and separate possession and dismissal of the suit. But on the other hand, the same were suppressed before the Trial Court. The petitioners have not raised their grievances about non-payment of the consideration amount or contending that there was fraud and misrepresentation played on them either by the plaintiff or by defendant No.10 or by the advocate whom they have engaged. The only ground raised under the application under Order XXIII Rule 3A of CPC is that, the period of restriction of 15 years on alienation had not expired when the compromise decree was obtained and the sale deed came to be executed. Considering these contentions in the light of the materials that are placed before the Court, the Trial Court rightly rejected the

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said application. There are no merits in the petition filed before this Court. Hence, he prays for dismissal of the petition.

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Learned counsel also submits that when a specific period of limitation was not provided elsewhere in the Limitation Act, Article 137 would come into operation and such a period of limitation would come into effect from the date when the right to apply accrues. When the compromise decree was accepted by the Trial court and compromise decree was passed on 17.04.2002, but the application under Order XXIII Rule 3A of CPC came to be filed on 10.07.2015 i.e., after lapse of 14 years. At least, it will be over 9 years from the date of filing the suit for partition and separate possession, where there is reference to the compromise decree and the subsequent sale deeds. Therefore, the claim of the petitioners is hopelessly barred.

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Learned counsel contended that while passing the order impugned herein, the Trial Court has made it clear that it is not the case of the applicants that they have not consented to a compromise petition or that they have not signed the compromise petition or the order sheet. Under such circumstances, the application IA No.8 is liable to be dismissed.

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It is only thereafter several grounds were made out while filing this petition alleging fraud and misrepresentation etc., which have no basis. Therefore, he prays for dismissal of the petition.

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The admitted facts of the case are that, the plaintiff got the agreement to sell dated 31.03.1995, to get the sale deed executed in respect of the schedule property. Defendant No.10 represented defendant Nos. 1 to 9 as their Power of Attorney holder and executed the agreement to sell in favour of the plaintiff is not in dispute. Admittedly, the plaintiff filed the suit OS No.3811 of 1998 seeking specific performance of the agreement to sell. Initially, defendant Nos. 1 to 9 were placed ex-parte. Later, they appeared before the Court by engaging the services of an advocate. They were physically present before the Court and all the parties to the suit have filed the compromise petition agreeing for the terms to decree the suit. The said compromise petition was filed before the Court on 21.04.2001. The parties were asked about their consent for decreeing the suit, for which they have expressed that they have willingly signed the compromise petition. The same was recorded by the Trial Court in the order sheet and the signatures of all the parties were obtained in the order sheet.

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Since the Trial Court raised certain queries regarding the period of restriction on alienation and to produce the RTC in respect of the schedule property, the matter was posted to a subsequent date of hearing. On 17.04.2002, learned counsel for the plaintiff filed a written submission along with additional documents. The additional documents include an endorsement issued by Assistant Commissioner dated 20.12.1996 wherein, it is stated that the period of restriction was already expired in view of the amendment to the Karnataka Village Offices Abolition (Amendment) Act 1978. Therefore, there was no necessity to seek permission for alienation of the property. The Trial Court appears to have considered the same and upon being satisfied, accepted the compromise that was already admitted by all the parties to the suit.

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Now it is the contention of the petitioners that the period of restriction on alienation had not expired as on the date of compromise petition or on the date of decree and subsequent execution of the sale deed in favour of plaintiff in Ex.Case.No1017 of 2002 was in violation of the said restriction and therefore, the compromise decree dated 17.04.2002 is liable to be set aside.

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While filing the application under Order XXIII Rule 3A of CPC, the only ground urged by the petitioners is that, since the land in question is inamathi land, there was a nonalienation period of 15 years and within that period of nonalienation, a compromise decree was passed on 17.04.2002 and therefore, the same is not a valid decree. Since the compromise decree was passed within the period of nonalienation, the same is to be set aside. Except this contention, there is absolutely no other contention raised by the petitioner.

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Regarding the period of restriction, the grant in favour of the original guarantee was on 06.07.1992. It is stated that there was 15 years restriction on sale of the granted land. But Annexure-R5 is the endorsement issued by the Assistant Commissioner on 20.12.1996, wherein, it is stated that the period of restriction to sell the property had already expired on 07.08.1998.

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The endorsement issued by the Assistant

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Commissioner as per Annexure-R5 makes it clear that the restriction on alienation had expired long back and there was

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no necessity for getting the permission for alienation of the land.

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It is not in dispute that in the meantime, petitioner No.2 who was defendant No.6 has filed the suit OS No.8352 of 2006 for partition and separate possession of the schedule property and the suit was filed on 08.09.2006. The declaration that the sale deed obtained through the Court by the decree holder in Ex.Case.No 1017 of 2002 was sought to be set aside as the same was void ab initio . It is also contended that the compromise decree obtained in the suit OS No.3811 of 1998 was by fraud and misrepresentation. Issue No.3 and additional issue No.1 were framed by the Trial Court on this specific ground urged by the plaintiff. After holding a full-fledged trial, the Trial Court answered both issue No.3 and additional issue No.1 in the Negative and dismissed the suit of petitioner No.2 who was defendant No.6 before the Trial Court as per the judgment and decree dated 19.06.2015.

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It is not in dispute that petitioner Nos.1 to 3 have preferred an appeal before the Deputy Commissioner in Misc.Case.(A) No.2 of 2011-12 challenging the endorsement

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issued by the Assistant Commissioner. The said appeal came to be dismissed vide order dated 06.08.2012, holding that the sale deed dated 24.03.2003 in favour of the plaintiff was not null and void. The Deputy Commissioner has upheld the endorsement issued by the Assistant Commissioner. It is only thereafter, on 10.07.2015, the petitioners have chosen to file the application IA No.8 under Order XXIII Rule 3A of CPC before the Trial Court seeking to set aside the compromise decree. It is very clear that the petitioners were not ignorant of the compromise petition or the compromise decree passed by the Trial Court on 17.04.2002, but the application came to be filed only on 10.07.2015. There is absolutely no explanation for the inordinate delay for filing the application. Only after exhausting all other remedies, the petitioners have approached the Court on the ground that the period of restriction on sale had not expired when the compromise decree was passed. The said contention was considered by the Trial Court and held that there is no merit in such contention.

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It is thereafter clear that while filing this petition,

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the petitioners have made out several grounds, including playing fraud and misrepresentations in obtaining their

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signatures. The petitioners admitted that they have subscribed their signatures/left thumb impressions on the compromise petition, being present before the Court and signing the order sheet, suffering the decree, challenging the same by filing the suit, seeking declaration for partition and separate possession, preferring appeal before the Deputy Commissioner and after exhausting all such remedies, approached the Trial Court by filing the application IA No.8 accompanied by the bald affidavit on, 10.07.2015.

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As rightly contended by the learned counsel for respondent No.6, Article 137 of the Limitation Act would apply to the facts of the present case, where the application was filed for which no period of limitation is provided else-where in the division. The period of limitation is three years from the date when right to apply accrues. The right to apply accrued in favour of petitioners when the compromise decree was accepted on 17.04.2002. But the application IA No.VIII was filed only on 10.07.2015 which is hopelessly barred by time.

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Considering all these facts and circumstances, I am of the opinion that it is only an attempt made by the petitioners

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to regle out of the situation after signing the compromise petition and the order sheet before the Trial Court. After admitting the contents of the compromise petition, now they want to avoid the compromise decree. Admittedly, the sale deed was executed in favour of the decree holders in Ex.Case.No.1017 of 2002 on 24.03.2003. It is also not in dispute that respondent No.7 in the present petition purchased the schedule property from the original plaintiff on 05.02.2004. There is nothing on record to contend that respondent No.7 was not a bonafide purchaser. In view of all these facts and circumstances, I am of the opinion that the petitioners are not entitled for any relief in this petition.

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Hence, the writ petition is dismissed .

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Sd/JUDGE

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SPV List No.: 1 Sl No.: 1

Gangamma v. Sri. Govindaraj T v

Case brief

What is this about?

What did the court decide?

Gangamma v. Sri. Govindaraj T v

Case brief

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What did the court decide?

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