Sri. D N Dayashankar Vs Smt. Vasantha D

THIS RFA IS FILED UNDER SEC.96 OF CPC.,1908 AGAINST THE JUDGMENT AND DECREE DATED 21.06.2018 PASSED IN OS NO.8246/2003 ON THE FILE OF THE XIV ADDL.CITY CIVIL JUDGE, BANGALORE DISMISSING THE SUIT FOR POSSESSION, PERMANENT INJUNCTION AND DAMAGES.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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NC: 2026:KHC:8757 RFA No. 1480 of 2018

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed against the decree dated 21.06.2018 dismissing the suit in O.S.No.8246/2003 for ejectment, damages and consequential relief of injunction. The suit is filed based on the registered sale deed dated 10.07.2003.

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There is no dispute relating to the identity of the property. The suit is filed against the sole defendant and during the pendency of the suit the sole defendant died. Legal representatives were brought on record in place of deceased defendant.

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The defendant resisted the suit based on agreement for sale dated 06.12.2002 said to have been executed by mother of the plaintiff. The plaintiff claims title of the property under registered sale deed dated 10.07.2003 said to have been executed by Jaya Rao.

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It is stated that Jaya Rao was the owner of the property and he purchased the property under the registered sale deed dated 10.10.1974 marked at Ex.P7.

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HC-KAR

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It is noticed from the records that the defendant

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raised a contention that the plaintiff's mother agreed to sell the property to the defendant on 06.12.2002 and the defendant contends that the plaintiff’s mother acquired the title of the property from very same Jaya Rao under whom the plaintiff is claiming title through a registered sale deed.

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Admittedly, the agreement for sale dated

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06.12.2002 in favour of the defendant by Jayarao is not registered. The said sale agreement is not translated into a registered sale deed. Thus, there is no conveyance in the eye of law conferring title in favour of the defendant.

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The Trial Court framed the following issues and the

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parties led evidence.

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(i) Whether plaintiff proves that he is the owner of the schedule property by virtue of the registered sale deed dated 10.07.2003 from Jaya Rao?

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(ii) Whether defendant proves that Smt. Rukmini Bai the General Power of Attorney holder of Jaya Rao executed agreement of sale dated 06.12.2002 and put the defendant in actual possession of the suit schedule property?

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HC-KAR

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(iii) Whether the suit is bad for non-joinder of necessary parties?

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(iv) Whether plaintiff proves that defendant is in illegal possession of the schedule property and thereby entitled for Rs.1500/- per month by way of damages?

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(v) Whether plaintiff is entitled for possession of suit schedule property and other reliefs?

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(vi) What order or decree?

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The Trial Court has come to the conclusion that the

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plaintiff is not entitled to relief of possession and damages and consequential relief of injunction on the premise that the plaintiff has suppressed the agreement for sale dated 06.12.2002 executed by the mother of the plaintiff.

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The defendant had raised a contention that

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agreement for sale dated 06.12.2002 is not cancelled, as such, the plaintiff is not entitled to the relief of possession and same is accepted by the Trial Court.

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The following point would arise for consideration:

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HC-KAR

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Whether the Trial Court is justified in holding that the plaintiff is not entitled to the relief of possession on the premise that he has suppressed the agreement for sale dated 06.12.2002?

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Learned counsel appearing for the plaintiff/ appellant would urge that the registered sale deed dated 10.07.2003 is produced and title is established. The plaintiff's vendor Jaya Rao had purchased the property under the registered sale deed dated of the year 1974 and even the defendant is claiming right over the property from Jaya Rao (spelt as Jayaram by defendant) who according to the defendant has executed an agreement for sale in favour of the plaintiff’s mother.

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It appears that there is some difference in the way

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the name Jaya Rao is spelt in the sale deed in favour of the plaintiff and the agreement in favour of the defendant. It appears that both are same persons. In that event, there is no difficulty in holding that said Jaya Rao was the owner of the property.

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Assuming that those two persons are different, it is

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for the defendants to establish that Jaya Rao mentioned in the

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HC-KAR

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agreement for sale dated 06.12.2002 was the owner of the property. There is nothing on record to show that said Jaya Rao who is named in the agreement dated 06.12.2002 is the owner of the property.

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Learned counsel for the defendants would urge that the agreement for sale dated 06.12.2002 is not cancelled and he has already filed a suit for specific performance of the contract by issuing notice to the plaintiff.

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From the records it is evident that the plaintiff has acquired ownership of the property under registered sale deed dated 10.07.2003. Plaintiff’s vendor Jaya Rao acquired the title over the property under the registered sale deed of the year 1974 which is marked at Exhibit P7. When that is the position, the defendant who is claiming right under unregistered agreement for sale is not the owner of the property.

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Now the question is whether suppression of the fact relating to agreement for sale should result in dismissal of the suit.

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HC-KAR

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Though it is urged that Jaya Rao has executed power of attorney in favour of the plaintiff’s mother on 28.11.1984 and based on that power of attorney, the plaintiff’s mother executed an agreement on 06.12.2002, what is required to be noticed is, there is no registered sale deed in the name of defendants either executed by Jaya Rao or the power of attorney holder- the mother of the plaintiff.

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It is indeed true that the plaintiff appears to have suppressed the agreement for sale dated 06.12.2002. It appears that the plaintiff is a witness to the agreement for sale dated 06.12.2002. However, that does not prevent the plaintiff from purchasing the property and there is no such prohibition under law.

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Merely, because the plaintiff has suppressed the fact that there was an agreement for sale in favour of the defendant in terms of agreement for sale dated 06.12.2002, and merely because the plaintiff has pleaded that the defendant is in illegal possession, that does not divest the plaintiff's title over the property which was acquired under the registered sale deed dated 10.07.2003.

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NC: 2026:KHC:8757 RFA No. 1480 of 2018

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HC-KAR

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Under these circumstances, the Court is of the view that the Trial Court could not have held that the plaintiff is not the owner of the property.

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The relief of possession is also sought. The suit is for possession based on title. The defendant has not raised the plea of adverse possession. Article 65 of Limitation Act, 1963 would apply to the facts of the case. Under the circumstances, the suit is also in time.

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Since the plaintiff has given up the plea for damages, as orally submitted by the learned counsel for the plaintiff, before this Court, same is rejected.

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Though the learned counsel for the defendant urged that he has already filed the suit for specific performance of contract to purchase the suit schedule property, no documents are produced in support of the contention. Even assuming that such a suit is filed, the pendency of such suit will not be an impediment to try and decide this appeal.

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NC: 2026:KHC:8757 RFA No. 1480 of 2018

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HC-KAR

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The suit if any, is filed by the defendant seeking specific performance of the contract, same shall be decided on its own merit. Hence, the following:

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ORDER

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(i) The Appeal is allowed in part .

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(ii) The judgment and decree dated 21.06.2018 on the file of XIV Additional City Civil Judge, Bangalore in O.S.No.8246/2003 are set aside.

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(iii) The suit of the plaintiff is decreed in part. The plaintiff is entitled to the possession of the property.

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(iv) In case, the defendants succeed in a suit for specific performance, then the possession of the property has to be handed over to the defendants.

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(v) The observations made in this case should not be construed as having reflected anything on the merits of the suit for specific performance, if any, filed or to be filed.

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