IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF SEPTEMBER, 2018 PRESENT THE HON’BLE MR. JUSTICE BUDIHAL R.B.
AND THE HON’BLE MR.JUSTICE B.A. PATIL R.F.A. NO.592/2013 c/w R.F.A. NO.352/2013 IN RFA NO.592/2013:
BETWEEN:
1. B.M. Venkatalakshmamma W/o late G.C. Narasaiah Aged about 78 years 2. S.L.N. Swamy S/o late G.C. Narasaiah Aged about 55 years 3. Nomito Kamdar W/o S.L.N. Swamy Aged about 45 years All are residing at No.142, 69th Cross, 5th Block, Rajajinagar, Bangalore-10.
(By Sri Nitin R., Advocate) … Appellants AND:
1. P.M. Gopi S/o late Mylaraiah Aged about 38 years Residing at No.24, 2nd Cross SBM Colony, Mathikere Bangalore-560 054.
2. Sri Gururaj G., Aged about 29 years Residing at Sri Raghavendra Krupa No.156/9, (Old No.186), 26th Cross, Kempamma Layout Hulimavu, Bannerughatta Road Bangalore-560 076.
… Respondents (By Sri P.M. Siddamallappa, Advocate C/R1;
Sri Praveen Hegde, Advocate for R2) This RFA is filed under Section 96 of CPC, against the judgment and decree dated 31.01.2013 passed in Ex.No.411/2011 on the file of XXII- Additional City Civil and Sessions Judge, C/C. of XI- Addl. City Civil and Sessions Judge, Bengaluru (CCH No.8) dismissing the application filed under order 21, Rule 97 of CPC.
IN RFA NO.352/2013:
BETWEEN:
Sri P.M. Gopi S/o late Mylaraiah Aged about 39 years Residing at No.24, 2nd Cross SBM Colony, Mathikere Bangalore-560 054.
… Appellant (By Sri P.M. Siddamallappa, Advocate) AND:
1. Sri Gururaj G., S/o late G.C. Narasaiah Aged about 29 years Residing at Sri Raghavendra Krupa No.156/9S, 26th Cross, Kempamma Layout, Hulimavu, Bannerughatta Road Bangalore-560 076.
2. Sri B.M. Venkatalakshmamma W/o late G.C. Narasaiah Aged about 79 years 3. Sri S.L.N. Swamy S/o late G.C. Narasaiah Aged about 56 years 4. Smt. Nomito Kamdar W/o S.L.N. Swamy Aged about 46 years Respondents 2 to 4 are Residing at No.142, 69th Cross, 5th Block, Rajajinagar, Bangalore-560 010.
… Respondents (By Sri Praveen Hegde, Advocate for R1; Sri Nitin R., Advocate for R2 to R4) This RFA is filed under order 41 Rule 1 r/w Section 96 of CPC, against the order dated 31.01.2013 passed in Ex.No.411/2011 on the file of XXII-Additional City Civil and Sessions Judge, C/C. of XI-Addl. City Civil and Sessions Judge, Bangalore, dismissing the application filed under order 21, Rule 97 of CPC r/w Section 151 of CPC.
These RFAs having been heard and reserved on 03.07.2018 coming on for pronouncement of judgment this day, B.A.PATIL J., delivered the following:-
J U D G M E N T RFA.No.592/2013 is preferred by the objectors, challenging the judgment and order dated 31.1.2013 passed in Execution No.411/2012, on the file of the XXII Additional City Civil and Sessions Judge, C/C of XI Additional City Civil and Sessions Judge, Bangalore (CCH.No.8) dismissing the application filed by the objectors under Order XXI Rule 97 r/w. Section 151 of CPC, whereas RFA.No.352/2013 is preferred by the decree holder, challenging the very judgment and order in so far as the finding that the decree holder in order to seek delivery of physical possession of the schedule property, has to resort to under due process of law to evict the objectors from the schedule property and he can obtain symbolic delivery of possession of the schedule property and then resort to due process of law to evict objectors from the schedule property is concerned.
2. Brief facts are that appellants in RFA.No.592 /2013 filed a suit in O.S.No.4694/2010 against the second respondent herein who claimed to be the son of Sri G.C. Narasaiah and the said Sri G.C.Narasiah, whereunder an order of permanent injunction was sought for restraining the defendants therein from interfering from peaceful possession and enjoyment of the suit schedule property. The said suit was decreed and the second respondent herein was restrained from dispossessing the plaintiffs-appellants herein except in accordance with due process of law. The second respondent herein claimed his right to the suit schedule property by virtue of the gift deed dated 14.6.2010 alleged to have been executed by his father. The stamp duty has not been properly paid in respect of the said gift deed and the respondent is not the son of the second defendant-Narasaiah. Under such circumstances, the said document is a doubtful document. In order to defeat the rights of the appellants, second respondent has entered into an agreement of sale dated 21.1.2011 with the first respondent herein for a meager amount. The said transaction is a collusive transaction and in that behalf a suit came to be filed by the first respondent herein in O.S.No.8733/2011 for specific performance. Though there are disputes, a collusive compromise decree was passed in the said suit and subsequently execution petition came to be filed. The second respondent did not appear before the Court and as such, the sale deed was got executed through Court on 11.4.2012. As the said proceedings are collusive, they are not binding upon the appellants-objectors and admittedly the appellants-objectors are in actual and physical possession of the schedule property. As the appellants-objectors have not been arrayed as parties in the said suit, under such circumstances, delivery of possession of the property is illegal. It is further case of the appellants-objectors that appropriate proceedings have been initiated challenging the said gift deed. Under such circumstances, dispossessing of the appellants- objectors from the schedule property without giving any opportunity is not maintainable. The appellants-objectors came to know about the execution proceedings only on 2.7.2012 when Court Ameena had come to the premises to dispossess them. It is further stated that immediately after coming to know about the issuance of delivery warrant, they filed an application to advance the case from 1.8.2012 to 4.7.2012 which came to be allowed. They also filed an application under Order XXI Rule 97 r/w. Section 151 of CPC as obstructers seeking to adjudicate their interest in the said execution. It is further stated that the Court below did not recall the delivery warrant and the case was posted for objections of the first respondent on 7.7.2012. When the Court below did not pass any order to recall the delivery warrant, a writ petition in WP.No.23140/2012 was filed and subsequently challenging the order of the trial Court rejecting the application for stay of the execution proceedings another writ petition in WP.No.2039/2013 was filed. This Court on 18.7.2012 directed the trial Court to decide the application of the obstructers within three months. Thereafter, the appellants-objectors have also filed one more writ petition in WP.No.33251/2012 challenging the order of the trial Court staying the original suit proceedings and WP.No.2039/2013. Subsequently, the application filed by objectors came to be dismissed by the order dated 31.1.2013. Challenging the same, RFA.No.592/2013 is filed by the objectors.
3. It is the case of the decree holder, i.e., appellant in RFA.352/2013 that the executing Court while dismissing the application filed under Order XXI Rule 97 r/w. Section 151 of CPC, observed that the decree holder in order to seek delivery of physical possession of the schedule property, has to resort to under due process of law to evict the objectors from the schedule property and made clear that the decree holder can obtain symbolic delivery of possession of the schedule property and then resort to due process of law, to evict objectors from the schedule property. Challenging the said finding, he has filed RFA.No.352/2013.
4. We have heard the learned advocates appearing for the parties. Learned counsel Sri Nitin R., appearing for the appellants in RFA.No.592/2013 apart from the grounds of appeal memo, has submitted that originally the schedule property was owned by one G.C. Narasaiah and he used to live along with the appellants. Subsequently he started living separately with Smt.Pillamma who got one son by name Gururaj, i.e., respondents No.2 herein. Though the said person is not related in any manner to the said Narasaiah, a gift deed was got executed by the said Gururaj without disclosing the existence of the appellants. He further submitted that the subsequent purchaser who has obtained the decree for specific performance is not a bona fide purchaser and the said sale deed is without notice and knowledge of the appellants. He further submitted that the decree holder was having the knowledge of possession of the appellants over the suit property. He further submitted that as per Explanation-II of Section 3 of the Transfer of Property Act, 1882, (‘T.P. Act’ for short), if any person acquires immovable property, he shall be deemed to have notice of the title and the actual possession thereof. Under such circumstances, he should have been made as a party. In order to substantiate his said contention he relied upon a decision of the Hon’ble Apex Court in the case of Ram Niwas (dead) through LRs. Vs. Bano(Smt.) and others, reported in (2000)6 SCC 685. By drawing our attention to the paper book, he further submitted that though the said Gururaj was not in possession of the property, by suppressing the material facts he got the delivery warrant only against the said Gururaj and tried to execute the said warrant. He further submitted that he was not staying in the said address also. He further submitted that the conduct of the said Gururaj is also relevant to decide this particular case. Legal notice was got issued through Sri Umesh, Advocate, though he was residing at Rajajinagar, who got issued the notice to the address at Hulimavu as per Ex.R24. He further submitted that the speed with which the said litigation was concluded and compromised itself shows that it is a collusive decree between the parties only to deprive the appellant. He further drawing our attention to the gift deed submitted that the proving of the gift deed is heavily upon the judgment debtor, but the Advocate who is appearing on behalf of the judgment debtor i.e. Gururaj is a witness to the gift deed and he has been examined before the Court as RW.2. This evidence clearly goes to show about the collusion between the decree holder and the judgment debtor and as per Section 126 of the Indian Evidence Act (‘Act’ for shot), the said evidence has to be discarded. Except the Advocate no other witness came to be examined to prove the gift deed, which itself clearly goes to show that the said gift deed has not been proved in this behalf. He further submitted that though the Will has also said to have been executed by the father of the appellants-objectors and the said Gururaj, in the said Will it has not been mentioned the existence of the gift deed. If really the gift deed is a genuine and valid, then under such circumstances definitely he could have mentioned the same in the Will. He further submitted that at the time of execution of the Will as well as the gift deed, the health of the testator/donor was not good. Under such circumstances, it creates a doubt in the case of the judgment debtor and the decree holder. Even by drawing our attention to Section 68 of the Act and also by relying upon the decision in the case of Kalyan Singh Vs. Smt.Chooti & others, reported in AIR 1990 SC 396 he further submitted that gift deed must be proved like any other documents by examining two witnesses and though the advocate came to be examined, he is not a competent witness and no independent witness has been examined, which itself shows the suppression of the facts and material. He further submitted that when civil litigations were pending, PW.2 who came to be examined has not given the true state of affairs and as such his evidence has to be discarded. He further submitted that as per Order XXI Rule 97 r/w. Rule 101 of IPC, the right of the appellants is to be adjudicated upon in the said application and not by a separate suit. Under such circumstances, the Court below ought to have considered all the aspects before issuance of the delivery warrant and holding that the decree holder is entitled to the said property. On these grounds he prayed to allow the appeal filed by the objectors and set aside the impugned judgment and order. In order to substantiate his aforesaid contentions, he has also relied upon the decision in the case of Ratan Lal Jain & others Vs. Uma Shankar Vyas & others reported in AIR 2002 SC 804.
5. Per contra, Sri P.M.Siddamallappa, learned counsel for respondent No.1-decree holder, who is appellant in RFA.No.352/2013 vehemently argued that the schedule property is the self acquired property of Narasaiah, the father of the objectors as well as the judgment debtor Gururaj and the objectors have no vested right in the said property though they are in possession of the said property. He further submitted that the deceased has executed a Will and the validity of the said Will has not been questioned either in execution or by any other separate proceedings. He further submitted that though the suit for injunction was decreed, at the time when the said injunction suit was decreed, the father of the appellants-objectors has not been made as a party and nowhere they claimed their statutory right. He further submitted that the cause of action dies with death of defendant No.2. By referring to Section 28(3) of the Specific Relief Act, he submitted that the suit for specific performance of a contract for sale of immovable property has been decreed and if the sale deed is not executed, the Court can order him to pay the consideration amount and ask to execution of a proper conveyance and delivery of the possession or partition and separate possession. He further submitted that the application filed under Order XXI Rule 97 of CPC has been rejected and as such there is no other alternate for the appellant, except executing the decree and to deliver the possession. He further submitted that the trial Court has erred in not giving the possession of the suit schedule property and erroneously passed an order to give the possession in accordance with law. To that extent the Court below has not correctly passed the order. He further submitted that the trial Court after considering all the material facts has rightly dismissed the application of the objectors. They have not made out any good grounds to interfere with the impugned order and the same is liable to be dismissed. He further submitted that the appeal filed by the decree holder in RFA No.352/2013 may be allowed by modifying the order of the trial Court. In order to substantiate his contentions, he has relied upon a decision of the Hon’ble Apex Court in the case of Babu Lal Hazari Lal Kishori Lal & others, reported in AIR 1982 SC 818.
6. It is the main contention of the Objectors- appellants in RFA.No.592/2013 that G.C.Narasaiah said to have executed a gift deed in favour of the judgment debtor in respect of the suit schedule property. But the said gift deed dated 14.6.2010 is not properly stamped and even at the time when the gift deed has been executed, the said G.C.Narasaiah was not having any good health. On the basis of the said concocted document, the judgment debtor Gururaj executed the sale deed in favour of the decree holder and obtained a collusive compromise decree and when the execution petition came to be filed against the judgment debtor, though he was aware that the first appellant- objector was in actual possession of the schedule property without making him as a party, the judgment debtor has obtained the said compromise decree. As such, the said decree is not an executable decree. He further submitted that appellants-objectors filed O.S.No.4715/2012 challenging the alleged gift deed said to have been executed by Narasaiah and in the execution petition, they also filed an application under Order XXI Rule 97 of CPC. But the said suit came to be closed in CRP.No.555/2013 giving liberty to the appellants-objectors to work out their grievances in these proceedings before this Court. He further submitted that all tenable contentions could be raised before this Court with regard to right, title and interest or fraud if any pleaded and taken up by the appellants-objectors.
7. It is not in dispute that the first appellant- objector is in physical possession of the suit schedule property and it is also not in dispute that when a suit was filed for specific performance by the decree holder, the first appellant-objector has not been made a party. Even it is not in dispute that subsequently, the said suit for specific performance was compromised in between the decree holder and the judgment debtor.
8. Keeping in view the above said admitted facts, let us consider the contentions which are raised by the learned counsel for both parties. Learned counsel for the appellants-objectors submitted that the possession of appellant No.1- objector will be under the deemed notice, then under such circumstances, the purchaser of immovable property cannot take the possession in view of Explanation II to Section 3 of the T.P. Act. In order to substantiate the said contention, he relied upon the decision in the case Ram Niwas (Dead) through LRs. Vs. Bano (Smt.) & others (quoted supra), wherein at paragraphs-5, 6, 7 and 8 it has been observed by the Hon’ble Apex Court as under:-
“5. It may be noted here that “notice” may be (i) actual, (ii) constructive, or (iii) imputed.
6. Section 3 of the Transfer of Property Act defines, inter alia, “‘a person is said to have notice’ of a fact when he actually knows that fact, or when but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.”.
And Explanation II appended to this definition clause says:
“Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.”
7. Thus, it is seen that a statutory presumption of “notice” arises against any person who acquires any immovable property or any share or interest therein of the title, if any, of the person who is for the time being in actual possession thereof.
8. The principle of constructive notice of any title which a tenant in actual possession may have, was laid down by Lord Eldon in Daniels Vs. Davison (Ves at p.254). The learned Law Lord observed:
“Upon one point in this cause there is considerable authority for the opinion I hold; that, where there is a tenant in possession under a lease, or an agreement, a person, purchasing part of the estate, must be bound to inquire, on what terms that person is in possession.”
9. On going through the above proposition of law, a person purchasing the immovable property is bound to make an enquiry as to on what terms and conditions the said person is in possession of the said property and if the said possession is legal, then under such circumstances, the only course left open to the purchaser of the property is to evict by due process of law. In so far as this proposition of law is concerned, the Honb’le Apex Court and this Court in catena of decisions have upheld the said proposition of law.
10. The second aspect is mainly concentrated on the gift deed said to have been executed by Narasaiah on 14.6.2010. It is the contention of the objectors that they filed O.S.No.4715/2012 challenging the said gift deed and subsequently the said proceedings came to be closed before this Court in CRP.No.555/2013 giving liberty to the appellants-objectors to put forth all the pleas in these proceedings. Though the learned counsel for the appellants-objectors by taking us through the evidence and other records, submitted that the said gift deed is not properly stamped, suppressing many facts, the sale deed has been executed by the judgment debtor. When that being the case, the said issues which the learned counsel for the appellants-objectors have raised require the evidence to show that the said gift deed has been got created and executed suppressing material facts and the donor was also not in a position to execute the said gift deed. Though during the course of arguments, the learned counsel for the respondents-decree holder and the judgment debtor, submitted that a Will has also been executed by the deceased Narasaiah, when the parties are relying upon the different documents, they must be given full opportunity to substantiate their case by leading the evidence and thereafter rights of the parties can be legally and properly adjudicated upon. Though in order to prove the gift deed, RW.2-Praveen Hegde, advocate was examined on behalf of the judgment debtor, he has deposed that he drafted and prepared the gift deed in respect of Narasiaah as per Ex.R5 and his signature is at Ex.R5(a). It is the contention of the learned counsel for the appellants-objectors that Section 126 of the Act, bars him under the professional communication to become a witness to the documents belonging to the respondents. It is therefore essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the gift deed. It must be stated that the factum of execution and the validity of the gift deed cannot be determined merely by considering the evidence produced by the person who is beneficiary, but in order to judge the credibility of the witness and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanor. It would be open to the Court to consider the circumstances brought out before the Court either during the course of arguments or in the evidence which appear from the nature and contents of the documents and the evidence and the Court can exercise its inherent power to reach a proper and fair conclusion on the basis of the evidence in this behalf. In that light, we are of the considered opinion that when a separate suit in O.S.No.4715/2012 has been filed on the premise that so called gift deed executed in favour of the judgment debtor by Narasaiah was sham document, no such valid gift deed has been executed by him. In that view of the matter, the issue to be decided in these appeals is not just and proper. No doubt, no separate suit lies, but when admittedly the Execution Petition No.411/2011 is pending, then under such circumstances, that too when an application under Order XXI Rule 97 of CPC has been filed, the executing Court is competent to consider all questions raised by the persons offering obstruction against the execution of the decree and also the gift deed. Hence, we feel it just and proper that all the questions including the questions relating to right, title and interest over the schedule property arising between the parties to a proceeding can be adjudicated upon and determined by such Court. Though it is brought to our notice by the learned counsel for the appellants-objectors that while disposing of CRP.No.555/2013 dated 3.6.2014, it has been observed by this Court that the order passed by the Executing Court is to be challenged in these appeals and the said issues which have been raised in the said CRP could be raised in the appeal with regard to title, right or interest if any fraud is pleaded can be considered by this Court, in order to appreciate the things it requires full pledged trial and the parties should be given full opportunity to lead their evidence and thereafter the Court can adjudicate upon such right, title and interest pleaded by the parties.
11. Under the aforesaid circumstances, we are of the considered opinion that the evidence which is produced before this Court is not sufficient to determine all such aspects. In that light, we feel it just and proper that if the impugned order challenged in these appeals by both the parties, is set aside and the matter is remanded back to the executing Court with a direction to give full opportunity to both the parties on all the issues and thereafter consider all the issues raised including the one raised in the aforesaid CRP and in these proceedings on merits and in accordance with law, it would meet the ends of justice.
Accordingly, the following order is made:-
The appeals are allowed. The impugned order passed in Execution No.411/2012, on the file of the XXII Additional City Civil and Sessions Judge, C/C of XI Additional City Civil and Sessions Judge, Bangalore (CCH.No.8), dated 31.1.2013 is set aside. The matter is remanded to the executing Court with a direction to give full opportunity to both the parties and thereafter consider all the issues raised in CRP.No.555/2013 disposed of on 3.6.2014 and in these proceedings on merits and in accordance with law.
Since the suit is of the year 2011, the concerned executing Court is hereby directed to take up the matter on priority basis and to dispose of the same as early as possible but not later than the outer limit of six months from the date of receipt of a copy of this judgment.
Sd/- JUDGE Sd/- JUDGE *ck/-