Dr Nohsina Arnib Vs Mali Suresh

REP. BY HER GPA HOLDER SRI.K.M. KHADEER AHMED, AGED ABOUT 45 YEARS S/O LATE MD. KHASIM SAAB, R/O DOOR No. 1/8, II FLOOR, AMBEDKAR TELECOM LAYOUT R.P.C.LAYOUT, K.P. AGRAHARA POST, BANGALORE-560 023. …APPELLANT

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(BY SRI. R.S. RAVI, SR. ADVOCATE FOR SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE)

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AND:

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MALI SURESH AGED ABUT 43 YEARS S/ M SHANKARAPPA R/O NO.71, I MAIN LOWER PALACE ORCHARD BANGALORE 560 003

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C THIMMARAYAPPA AGED ABOUT 71 YEARS S/O LATE CHIKKA KARIYAPPA R/O BUDEHAL VILLAGE KASABA HOBLI NELAMANGALA TQ – 563 123 BANGALORE.

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SMT N SHOBHA AGED ABOUT 60 YEARS W/O B S RAMESH R/O BEGARIHOSAHALLI VILLAGE KASABA HOBLI KOLAR - 563 103

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THE TAHSILDAR NELAMANGALA TALUK NELAMANGALA EXTEN., BANGALORE DISTRICT – 562 123

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THE STATE OF KARNATAKA REP. BY ITS REVENUE SECRETARY, VIDHANA SOUDHA BANGALORE 560 001

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THE SUB-REGISTRAR NELAMANGALA BANGALORE DISTRICT – 562 123

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…RESPONDENTS

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(BY SRI. B N JAYADEVA, ADVOCATE FOR C/R1)

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THIS RSA IS FILED U/S. 100 OF CPC. AGAINST THE JUDGEMENT AND DECREE DATED 22.02.2012 PASSED IN R.A.NO.6/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT – III, BENGALURU RURAL DISTRICT, BENGALURU, SETTING THE JUDGMENT AND DECREE DATED

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01.09.2010 PASSED IN O.S. No.27/2009 ON THE FILE OF SR. CIVIL JUDGE AND JMFC., NELAMANGALA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 22.02.2012 passed in R.A.No.6/2011 by the Presiding Officer, Fast Track Court-3, Bengaluru Rural District, Bengaluru and also the judgment and decree dated 01.09.2010 passed in O.S.No.27/2009 by the learned Senior Civil Judge and JMFC, Nelamangala.

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For convenience, parties are referred to based on their rankings before the trial Court. Appellant was defendant No.3, respondent No.1 was plaintiff and other respondents were the other defendants.

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Brief facts leading rise to the filing of this

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appeal are as follows:

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Plaintiff filed a suit against the defendants for declaration of title and consequential relief of permanent injunction. It is the case of the plaintiff that the suit schedule property was originally belonged to Sri. C. Timmarayappa i.e., defendant No.1. The name of the first defendant was entered in the revenue records and he being the Khatedar, was in possession and enjoyment of the suit land. Defendant No.1 sold the said land to defendant No.2 through a registered deed of sale dated 30.12.1990. Defendant No.2, having purchased the said land from defendant No.1, got her name mutated in the revenue records as per MR No.7/1990-1991. Defendant No.2 put in possession of the said land and she is in actual cultivation of the land and the pahani is transferred in her name.

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The second defendant was in possession before

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the execution of the registered sale deed in favour of the

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plaintiff. It is stated that defendant No.2 has executed a registered sale deed dated 15.05.1995 in favour of the plaintiff. The said document was referred to the District Registrar as per Section 45A of the Karnataka Stamp Act. It is contended that defendant No.2 delivered the possession of the suit schedule property in favour of the plaintiff. Subsequent to the acquisition, the land was transferred in the name of the plaintiff as per MR No.27/1994-95. It is contended that the plaintiff has been in possession and enjoyment of the said land since the date of purchase.

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It is contended that the third defendant

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approached the village Accountant seeking Mutation in his name in the revenue records. Upon learning about the attempts of defendant No.3, the plaintiff inquired and came to know that defendant No.1 and his wife had entered into an agreement of sale dated 07.10.1988 with defendant No.3 and the suit was decreed ex-parte vide judgment dated 12.07.1994 in O.S.No.229/1992. The

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plaintiff immediately applied for a certified copy of the judgment and decree passed in O.S.No.229/1992.

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It is contended that the plaintiff was not aware of any agreement executed between defendant No.1 and defendant No.3. It is contended that the plaintiff is a bonafide purchaser for value without notice and it is contended that the judgment and decree passed in O.S.No.229/1992 is not binding on the plaintiff and the agreement of sale dated 07.10.1988 has been created by defendant No.1 and defendant No.3 by colluding with each other with a malafide intention.

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It is contended that the sale agreement dated 07.10.1988 is fabricated and it is contended that the no consideration amount was passed between defendants No.1 and 3. Hence, it is contended that subsequent to the passing of the judgment and decree in O.S.No.229/1992, defendant No.3 filed an execution petition in EP No.16/1995 and obtained a sale deed from the hands of

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the Court conveying the suit schedule property. It is contended that as of the date of the execution of the registered sale deed by the executing Court, defendant No.1 had no right, title or interest in the suit property. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction.

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Defendant No.1 filed a written statement and it

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is contended that defendant No.1 and his wife jointly executed a sale agreement in favour of defendant No.3 dated 07.10.1988 in respect of suit property and other properties bearing Sy.Nos.151/2, 149/1B and defendant No.3 had failed to perform his part of the contract. A0lthough defendant No.1 has personally approached defendant No.3 but defendant No.3 did not perform his part of a contract. It is contended that defendant No.3 filed a suit in O.S.No.229/1992 and successfully obtained the ex-parte decree by misleading the Court. It is contended that the judgment and decree passed in O.S.No.229/1992 is not binding on defendant No.1 and it

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is contended that defendant No.3 has played fraud on defendant No.1 and forged his signature. It is contended that he is not well-versed in reading English, but having confidence in defendant No.3, he entered into an agreement of sale and defendant No.3 has no legal right over the suit land because defendant No.2 was the bonafied purchaser. Hence, it is contended that defendant No.3 has suppressed the true facts regarding the registered sale deed of defendant No.2. Hence, prays to decree the suit.

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Defendant No.2 filed a written statement

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admitting the averments made in the plaint. It is contended that defendant No.2 purchased the suit land from defendant No.1 under a registered sale deed dated 30.12.1990. Subsequent to the sale deed, her name was mutated in the revenue records and she was in possession and enjoyment of the suit schedule property. It is admitted that defendant No.2 sold the said land in favour

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of the plaintiff under a registered sale deed dated

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15.05.1995 for valuable consideration and delivered the possession of the suit land in favour of the plaintiff.

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It is contended that defendant No.2 was not aware of the alleged agreement of sale entered into between defendants No.1 and 3 and also filing of suit in O.S.No.229/1992 and the ex-parte judgment and decree.

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It is contended that defendant No.2 is not a party to the suit in O.S.No.229/1992.

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It is contended that the judgment and decree passed in O.S.No.229/1992 is not binding on defendant No.2. It is contended that defendant No.3 has not challenged the registered sale deed executed by defendant No.1 in favour of defendant No.2, as such, any registered instrument, unless the registered instrument is set aside and declared as null and void in due course of law, such document remains in force and defendant No.3 by suppressing the true facts regarding the registered sale deed executed in favour of defendant No.2, filed a suit in

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O.S.No.229/1992 and obtained an ex-parte judgment. It is contended that the judgment and decree passed in O.S.No.229/1992 is not binding on defendant No.2. Hence, prays to decree the suit of the plaintiff.

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Defendant No.3 filed a written statement

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denying the averments made in the plaint. It is contended that defendant No.1 and his wife agreed to sell the suit schedule property in favour of defendant No.3 and executed an agreement of sale on 07.10.1988 and defendant No.1 failed to perform his part of the contract.

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Defendant No.3 filed a suit in O.S.No.229/1992 for specific performance of the contract on the file of II Additional Civil Judge, Bengaluru and the said suit was decreed vide judgment dated 12.07.1994. After decreeing the suit, defendant No.1 did not execute a registered sale deed. Hence, defendant No.3 filed an Execution Petition and the Court, by appointing the Court Commissioner, executed the registered sale deed on 31.07.1996. It is

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contended that defendant No.3 became the absolute owner by virtue of the registered sale deed dated 31.07.1996 and he is in possession and enjoyment of the suit schedule property. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed relevant issues.

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The plaintiff, to prove his case, examined himself as PW-1 and marked 20 documents as Ex.P.1 to Ex.P.20. On the other hand, defendant No.2 examined herself as DW-1 and no documents were marked.

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The trial Court, after recording the evidence and

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on assessing the verbal and documentary evidence, decreed the suit of the plaintiff with cost vide judgment dated 01.09.2010. It is hereby declared that the judgment and decree passed in O.S.No.229/1992 dated 12.07.1994 on the file of learned II Additional Civil Judge, Bengaluru, insofar as the suit schedule property bearing Sy.No.4/1 measuring 4 acres 5 guntas i.e., item No.4 in

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O.S.No.229/1992 is not binding on the plaintiff and consequentially, the sale deed executed in favour of defendant No.3 insofar as suit schedule property as concerned is not biding on the plaintiff and consequentially, defendant No.3 was restrained from interfering with the possession of the suit schedule property of the plaintiff. Defendant No.3 aggrieved by the judgment and decree passed in O.S.No.27/2009 preferred an appeal in R.A.No.6/2011 on the file of Fast Track Court –III, Bengaluru Rural District, Bengaluru.

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The first appellate Court, after hearing the

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learned counsel for the parties, framed the relevant points for consideration.

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The first appellate Court after reassessing the verbal and documentary evidence dismissed the appeal vide judgment dated 22.02.2012 and confirmed the judgment and decree passed in O.S.No.27/2009. The

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defendant No.3 aggrieved by the impugned judgments filed this Regular Second Appeal.

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Heard the learned Senior Counsel Sri. R.S. Ravi appearing for defendant No.3.

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Learned Senior Counsel submits that defendant No.1 and his wife executed a sale agreement in favour of defendant No.3 in 1988 and he submits that defendant No.1 and his wife did not perform their part of the contract. Defendant No.3 filed a suit for specific performance of contract in O.S.No.229/1992 against defendant No.1 and his wife. Defendant No.1 and his wife appeared through their counsel but did not contest the said suit. The trial Court, after recording the evidence of defendant No.3, decreed the suit vide judgment and decree dated 12.07.1994. Even after passing the decree in the said suit, defendant No.1 and his wife did not execute a registered sale deed.

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It is submitted that defendant No.3 filed an execution petition and the executing Court executed the registered sale deed in favour of defendant No.3 on 31.07.1996. He submits that defendant No.3 became the absolute owner of the suit property by virtue of registered sale deed dated 31.07.1996. He submits that defendant No.1 and his wife in part performance of the contract delivered the possession of the suit land. Both the Courts below have committed an error in not protecting the possession of defendant No.3 as per Section 53 A of the Transfer of Property Act and further to buttress his arguments he placed reliance on the order of Ghanshyam

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Vs. Yogendra Rathi reported in (2023) 7 SCC 361. Hence, on these grounds he prays to allow the appeal.

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He also submits that the plaintiff has not sought the relief of possession. Hence, he submits that the suit filed by the plaintiff is not maintainable as per proviso to Section 34 of the Specific Relief Act. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the

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submissions of the learned Senior Counsel for defendant No.3.

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It is not in dispute that originally, the suit schedule property was owned and possessed by defendant No.1. Defendant No.1 sold the suit schedule property in favour of defendant No.2 by a registered sale deed dated 30.12.1990.

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It is the case of the plaintiff that defendant No.1 and his wife executed an agreement of sale dated 07.10.1988. Defendant No.3 filed an O.S.No.229/1992 against defendant No.1 for a relief of specific performance and an ex-parte decree was passed. Further, as of the date of filing of the suit, defendant No.1 had no right, title or interest over the suit schedule property, as he has already created and has parted interest in favour of defendant No.2 by virtue of the registered sale deed dated 30.12.1990. Defendant No.3 was fully aware of the

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execution of a registered sale deed in favour of defendant No.2 and the sale deed was executed prior to the filing of the suit in O.S.No.229/1992. Defendant No.3 did not challenge the registered sale deed executed in favour of defendant No.2, unless defendant No.3 challenges the registered sale deed executed in favour of defendant No.2 and defendant No.3 will not get any right, title or interest over the suit schedule property by virtue of a registered sale deed dated 31.07.1996.

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I have perused the judgment passed in O.S.No.229/1992, which is marked at Ex.P.6 and ExP.7.

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From the perusal of the judgment, it discloses that defendant No.1 and his wife executed a registered sale agreement on 07.10.1988 and the time was the essence of the contract i.e., defendant No.1 and his wife had to execute a registered sale deed within 12 months from the date of execution of the sale agreement. Defendant No.3 has not taken any steps after the expiry of 12 months to have the registered sale deed executed. Defendant No.3

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got issued a legal notice on 14.10.1991. Though, the alleged sale agreement was executed on 07.10.1988, legal notice was issued on 14.10.1991. Defendant No.3 has not pleaded and proved that defendant No.3 was/is always ready and willing to perform his part of the contract. Merely, defendant No.1 and his wife did not participate in the said suit, the trial Court decreed the suit ex-parte.

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As observed above, as on the date of filing the said suit, defendant No.2 was the owner of the suit schedule property by virtue of the registered sale deed dated 30.12.1990 and without making defendant No.2 as a party defendant No.3 obtained a decree in O.S.No.229/1992. The decree obtained by defendant No.3 is behind the back of defendant No.2. The judgment and decree passed in O.S.No.229/1992 is not binding on the plaintiff as well as on defendant No.2. Both the Courts below have rightly considered the material placed on record and rightly passed impugned judgments.

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The learned Senior Counsel appearing for

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defendant No.3 submits that in part performance of contract defendant No.1 had delivered the possession of the suit schedule property and the possession of defendant No.3 is to be protected as per Section 53A of the Transfer

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of Property Act and he has also placed reliance on the judgment of the Hon’ble Apex Court in the case of Ghanshyam ( supra ). Admittedly, defendant No.2 was the absolute owner of the suit schedule property as of the date of institution of suit in O.S.No.229/1992 and the plaintiff has produced the certified copy of the registered sale deed executed in favour defendant No.2. From the perusal of the recital at Ex.P.8, it discloses that defendant No.1 had delivered the possession of the suit land in favour of defendant No.2 by virtue of the registered sale deed marked as Ex.P.8.

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As observed above, defendant No.3 has not challenged the registered sale deed executed in favour of defendant No.2 and further defendant No.3 has not

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examined any witnesses to prove that defendant No.3 is in possession of the suit schedule property. Merely a decree was passed in favour of defendant No.3, is not a ground to hold that defendant No.3 was in possession and enjoyment of the suit schedule property. Further, to prove the ingredients of Section 53A of the Transfer of Property Act, the person who takes a defence in regard to part performance of a contract, firstly has to establish that the sale agreement is in writing. Secondly he has to prove that he was/is always ready and willing to perform his part of the contract.

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Admittedly, in the instant case, defendant No.3 has failed to establish that defendant No.3 was/is always ready and willing to perform his part of the contract. In view of the law laid down by the Hon’ble Apex Court in the case of Giriyappa and another Vs. Kamalamma and Others reported in 2024 SCC Online SC 3849 , where

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Hon’ble Apex Court in para 11 held as follows:

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“11. From the aforesaid, it is evident that the protection of a prospective purchaser/transferee of his possession of the property involved, is available subject to the following prerequisites:

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(a) There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

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(b) The transferee has, in partperformance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract;

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(c) The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.”

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Hence, defendant No.3 has failed to prove the

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ingredients of Section 53A of Transfer of Property Act.

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Learned Senior Counsel for defendant No.3 submits that defendant No.1 filed a written statement admitting regarding the execution of the sale agreement dated 07.10.1988 in favour of defendant No.3. Defendant No.1 filed a written statement in O.S.No.229/1992, after

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the execution of registered sale deed in favour of defendant No.2. Any admission made by defendant No.1 after execution of a registered sale deed is not binding on the plaintiff or defendant No.2. The said view is supported by the judgment of Rajasthan High Court in the case of

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Radhey Shyam Vs. Smt.Premakanta and another

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reported in 1982 SCC Online Raj. 169 .

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I have perused the judgment passed by Hon’ble

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Apex Court in the case of Ghanashyam ( supra) . There is no dispute in regard to the ratio laid down in the said case. The said judgment does not apply to the present case on hand.

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In view of the above discussion, I do not find

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any error in the impugned judgments and any substantial question of law that arises for consideration in this appeal.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal is dismissed.

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(ii) The judgment and decree dated 22.02.2012 passed in R.A.No.6/2011 by the Presiding Officer, Fast Track Court-3, Bengaluru Rural District, Bengaluru and also the judgment and decree dated 01.09.2010 passed in O.S.No.27/2009 by

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the learned Senior Civil Judge and JMFC, Nelamangala are hereby confirmed.

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No order as to the costs.

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In view of the dismissal of the appeal, the pending I.A.s, if any, do not survive for consideration. Accordingly, disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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BVK

Dr Nohsina Arnib v. Mali Suresh

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Dr Nohsina Arnib v. Mali Suresh

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