IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 19859 OF 2019 (GM-CPC) BETWEEN:
B M SREENIVASAIAH EDUCATIONAL TRUST NO 1908, BULL TEMPLE ROAD, BANGALORE - 560019 REPRESENTED BY ITS MEMBER SECRETARY AND /OR DONOR TRUSTEE DR RAGINI NARAYAN.
… PETITIONER (BY SRI. K G RAHAVAN, SENIOR COUNSEL FOR SRI. H SRINIVAS RAO BADRI VISHAL, ADVOCATE) AND:
1. G C CHANDRE GOWDA S/O LATE SRI CHIKKE GOWDA AGED ABOUT 68 YEARS 2. A R PRAKASH S/O LATE SRI A N RAMAIAH AGED ABOUT 59 YEARS 3. A R RAJENDRA S/O LATE SRI A N RAMAIAH AGED ABOUT 56 YEARS RESPONDENTS NO. 1 TO 3 ARE RESIDING AT AVAHALLI, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 560064.
… RESPONDENTS (BY SRI. ASHOK HARNAHALLI, SENIOR COUNSEL FOR SRI. R SHYAM, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 20.10.2018 PASSED BY THE HON’BLE III ADDITIONAL PRINCIPAL CIVIL JUDGE, BENGALURU RURAL, BENGALURU, IN M.A.NO. 92/2017 VIDE ANNEX-A ON I.A.NO.1/2018 IN O.S.NO.995/2018 VIDE ANNX-A AND CONSEQUENTLY ALLOW I.A.NO.1/2018 IN FAVOUR OF THE APPELLANT HEREIN.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner being the plaintiff in an injunctive suit in O.S.No.995/2018 is invoking the writ jurisdiction of this court for assailing the Order dated 20.10.2018, a copy whereof is at Annexure-A, whereby its M.A.No.92/2018 having been negatived, the trial Court’s Order dated 24.09.2018, a copy whereof is at Annexure-B denying temporary injunctive protection has been affirmed.
2. After service of notice, the respondent-defendants having entered appearance through their counsel have filed the Statement of Objections resisting the writ petition.
3. Learned Sr. Advocate Mr. K.G.Raghavan appearing for the petitioner-Trust finds fault with the impugned orders of the Courts below on the following grounds:
(a) the challenge to acquisition of subject land having been allowed by the learned single Judge on 11.07.1996, the petitioner bought the same vide two sale deeds both dated 01.08.2002 through the GPA holder of the respondents; the Division Bench judgment dated 06.05.2004 having reversed the judgment of the learned single Judge was put in challenge by the respondents in SLP which came to be allowed by the Apex Court on 15.09.2016 reversing the judgment of the Division Bench and restoring the judgment of the single Judge; thus the title of the petitioners who were pendente lite buyers came to be cloud free; the judgment of the Apex Court feeds the title by grant or the like in favour of the petitioners;
(b) admittedly, petitioners have been in the settled possession of the subject lands by virtue of sale deeds; in fact, the respondents vide their letters dated 08.01.2018 at Annexure-G1, 20.05.2018 at Annexure-G2 & 25.05.2018 at Annexure-G3 had sought for restoration of possession from the petitioner-Trust; thus petitioners possession regardless of its nature needs to be protected by interdicting their dispossession save by due process of law; in support of his contention he banks upon a Division Bench decision of this Court in JOHN B.JAMES & OTHERS vs. BDA & ANOTHER, ILR 2000 KARNATAKA 4134;
4. Learned Sr. Advocate Mr. Ashok Haranhalli appearing for the respondents per contra contends in justification of the impugned orders as under:
(a) petitioner is admittedly a buyer pendente lite on the basis of the subject Power of Attorney which has been found to be fraudulent by the Apex Court in its SLP judgment; recognizing petitioner’s sale deeds even for limited purpose amounts to sitting in appeal over the wisdom of the Apex Court;
(b) the Power of Attorney on the basis of which the subject sale deeds have been executed and registered does not provide for alienation in its favour and therefore such conveyances do not convey the title at all; it is more so because of the specific direction of the Apex Court to restore the lands to the original owners; that being the position, much cannot be derived from these sale deeds at all; and, (c) petitioner in its FIR, a copy whereof is at Annexure-D5 have admitted that the possession of the subject land lies with the respondents herein; the possession of the land having been restored to the respondents pursuant to direction of the Apex Court in the judgment; the case of the petitioner to the contra, is not true.
5. Having heard the learned counsel for the parties and having perused the petition papers, this court is of the considered opinion that reprieve needs to be granted to the petitioner-Trust because:
(i) the material on record of the Courts below prima facie shows that the petitioner-Trust pursuant to two registered sale deeds of 01.08.2002 has been in the settled occupation of the subject land; true it is, that the petitioners are buyers pendente lite; the order of the Apex Court whereby the acquisition having been set aside, the land was ordered to be restored to the respondents, would enure to the benefit of their vendee namely the petitioner- Trust herein;
(ii) the contention of the respondents that there was no alienation clause in the Power of Attorney pursuant to which one Mr. S.Rangarajan executed and registered the subject sale deeds in favour of the petitioner-Trust is sought to be substantiated by placing reliance on certain paragraphs of the Apex Court judgment dated 15.09.2016, a copy whereof is at Annexure-C; but, those observations admittedly relate to some other Powers of Attorney that did not have alienation clauses; the Power of Attorney, a copy whereof is now placed on record by the petitioner on solicitation by this Court, arguably contains Clause-I which provides for alienation with wide terminology; therefore the said contention does not merit acceptance at this stage;
(iii) the contention of the respondents that the direction of the Apex Court is for restoring the land to its original owners and therefore the same would not enure to the benefit of their vendee, falls foul of the doctrine of lis pendence enacted in Sec.52 of the Transfer of Property Act, 1882; it is more so because the petitioner was not a party to the writ petition, to the writ appeal and to the SLPs unlike in the case of others wherein the buyers pendente were pressing for relief in their favour on the basis of Powers of Attorney which did not have alienation clause at all;
(iv) there is yet another reason as to why the contention at sub-paragraph (iii) above needs to be negatived; the judgment of the Apex Court specifically mentions about a set of cases of buyers pendente lite who were excluded from taking the benefit of sale deeds founded on some Powers of Attorney; those cases are mentioned at paragraph (b) of the operative portion, at page 65 of the Apex Court judgment; the SLPs of the respondents do not figure in the said paragraph; the contention that even in the absence of enumeration of the SLPs of the respondents in the said paragraph, still petitioner’s sale deeds should suffer the same fate because of the observations in paragraph (d) in the said judgment, is bit difficult to countenance, especially when the petitioner was, as already mentioned above, not a party eo nomine to the proceedings in which the acquisition in question was invalidated; accepting such a contention amounts to voiding an instrument by inference, which is very unsafe to regard being had to enormous undesirable consequences emerging, if done;
(v) the contention that the pronouncement of the Apex Court as to the Powers of Attorney being fraudulent, whereby Mr. S.Rangarajan was appointed to deal with the Government for obtaining sanction for the acquisition proceedings would bind the petitioner as well, is too farfetched an argument; the Power of Attorney pursuant to which petitioner obtained the conveyances was not the subject matter of scrutiny by the Apex Court at all; added to this petitioner as already stated above was not a party to the case in which challenge to acquisition was laid;
(vi) petitioner is justified in arguing that he is in the settled possession/occupation of the subject land by virtue of registered sale deeds of the year 2002; the Apex Court in the case of PREMSINGH & OTHERS vs. BIRBAL & OTHERS, (2006) 5 SCC 353 at para 27 has held that there is a presumption that a registered document is validly executed and therefore its contents are presumed to be true till rebuttal is made by leading evidence by the party contending to the contrary; the Division Bench of this Court in the case of JOHN B. JAMES (supra) at para 71 has stated the law: “A true owner (even if it is the State or a statutory body) has not right to forcibly dispossess an unauthorized occupant (including a trespasser) in the settled possession, otherwise than in accordance with law” ;
(vii) the three letters at Annexures-G1, G2 & G3 issued by the respondents asking the petitioner to restore possession to them pursuant to judgment of the Apex Court themselves show that it is the petitioner-Trust which is in the settled possession of the subject land; these documents are not in dispute; the contention of Mr. Haranhalli that petitioner’s FIR/Complaint to the Police dated 31.07.2018, a copy whereof is at Annexure-D5, more particularly its un-numbered para 3 proves the possession of the respondents is apparently incorrect to say the least; the complaint that the respondents are trespassing the subject land does not raise a presumption that they have occupied the land after throwing the petitioner out; there is nothing in this FIR to show that the respondents have taken the possession of the subject land from the petitioner; therefore the decision in JOHN B.JAMES Case squarely applies to the case of the petitioner;
(viii) the contention of the respondents that taking cognizance of the subject sale deeds dated 01.08.2002 and granting relief to the petitioner on that basis amounts to sitting in appeal over the decision of the Apex Court, is misconceived to say the least; the validity of Power of Attorney on which the subject sale deeds are founded was not the subject matter of scrutiny by the Apex Court which had examined the Powers of Attorney of other land owners although the same person namely Mr.S.Rangarajan was appointed as a middleman between the land owners and the Government; the related contention that what applies to buyers under such Powers of Attorney should logically apply to the petitioner too, again is too farfetched, especially when this petitioner was not a party in which challenge was laid to the acquisition; and, (ix) the reliance of Mr. Haranhalli on the decision of the Apex Court in AMIT KUMAR SHAH vs. FARIDA KHATOON, (2005) 11 SCC 403 does not come to the rescue of the respondents since it had only dealt with the law relating to impleadment of buyers of property pendente lite as parties to the title suits/other suits; Lord Hallsbury more than a century ago, in the celebrated case of Quinn v Leathem (1901) A.C. 495, 506:has observed as under:
“Now before discussing the case of Allen v. Flood, (1898) A.C. 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.”
Thus, a case is an authority for the proposition that directly and substantively has been laid down therein and not for all that logically follows therefrom.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned orders; petitioner’s application in I.A.No.1 filed under Order XXXIX Rules 1 & 2 r/w Sec.151 of CPC, 1908 is favoured; an order of temporary injunction issues restraining the respondents herein from interfering with petitioner’s possession of the suit lands till after the suit in O.S.No.995/2018 is tried & disposed off.
The observations hereinabove made being confined to disposal of this writ petition arising from the orders made by the Courts below on the subject application, shall not in any way and even remotely influence the trial and decision making in the suit.
All contentions of the parties are kept open. Costs made easy.
Sd/- JUDGE Snb/