IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1214/2009 BETWEEN:
1.SMT. CHANNAMMA W/O JAVARAYI AGED ABOUT 70 YEARS 2.SRI J BORAIAH S/O JAVARAYI AGED ABOUT 44 YEARS 3.SRI JAVARAIAH S/O JAVARAYI AGED ABOUT 42 YEARS ALL ARE RESIDING AT CHIKKAMANDYA VILLAGE, KASABA HOBLI MANDYA TALUK – 571 401.
(BY SRI M R RAJAGOPAL, ADVOCATE) AND:
SRI BHAKTACHETHA VASUDEVA S/O LATE C BORAIAH AGED ABOUT 43 YEARS R/O CHIKKAMANDYA VILLAGE KASABA HOBLI, MANDYA TALUK AND ... APPELLANTS DISTRICT – 571 401.
...RESPONDENT (BY SRI N SHANKARANARAYANA BHAT, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:06.03.2009 PASSED IN R.A.No.26/2007 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, (SR. DN.) AND CJM, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:22.01.2007 PASSED IN OS.No.264/2003 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, (JR.DN.), MANDYA.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree passed by the learned Additional Civil Judge (Sr.Dn) and CJM, Mandya, in R.A.NO.26/2007 on 06.03.2009, wherein the appeal filed by the defendants came to be dismissed with cost.
2. In order to avoid confusion and overlapping the parties are referred in accordance with the ranks held by them before the trial Court.
3. The original suit filed by the plaintiff in O.S.No.264/2003 came to be decreed and the defendants were restrained through an order of permanent injunction from interfering with the possession of the suit schedule property by the plaintiff.
4. In order to understand the facts and legal position involved in the present case, it is necessary to make cursory glance of the proceedings in O.S.No.345/1998, the suit that was filed by the plaintiff herein over an agreement to sell said to have been executed by the defendants dated 14.11.1997 for a cash consideration of Rs.30,000/-. The said suit came to be decreed on 14.9.1999. The defendants preferred appeal in R.A.No.112/1999 against the said decree for specific performance. However, the appeal was dismissed for non prosecution on 28.02.2002. Thereafter, plaintiff as decree holder filed Execution petition to execute the decree passed in O.S.No.345/1998 in Execution Petition No.172/1999, defendants contested the said petition. By rejecting the objection filed by the defendants, it is ordered to execute the sale deed in favour of the plaintiff. Again defendants failed to execute the regular sale deed and Court Commissioner was appointed by the court for executing the registered sale deed and represent the court by virtue of no response by the defendants on 17.10.2001 and thus he became the absolute owner in actual possession and enjoyment of the schedule property.
5. Thereafter, the plaintiff claiming interference of possession by the defendants filed a suit for permanent injunction in O.S.NO.264/2003 against the defendants. The said suit came to be decreed on 22.1.2007. Against which, defendants preferred appeal in R.A.NO.26/2007 and the same was dismissed on 06.03.2009, which is challenged in this appeal.
6. In the context and circumstances of the case, it is necessary to recapitulate that in respect of the schedule property registered sale deed was executed through the Court Commissioner in favour of the plaintiff-Bhakthachetha Vasudeva.
7. Thus, between the parties, the next round of litigation in a different claim is in the form of present suit. The same plaintiff, Bhakthachetha Vasudeva, decree holder in O.S.NO.345/1998 loosing in Execution Petition No.172/1999 the decree holder seeks permanent injunction and his prayer is as under:
The plaintiff prays for judgment and decree in his favour and against the defendants:
(a) For permanent injunction restraining the defendants, their agents, servants or anybody on their behalf from interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties;
(b) For award court costs and any other relief as this Hon’ble court deems fit under the circumstances of the case, in the interest.
8. Learned trial Judge after going through the oral evidence of PW-1 and documentary evidence of Ex.P1 to P3 has decreed the suit of the plaintiff on 22.01.2007. Against which, defendants preferred regular appeal before the First Appellate Court in R.A.No.26/2007 which came to be dismissed on 06.03.2009, which verdict is challenged in this appeal.
9. Learned counsel Sri. M.R.Rajagopal for appellants would submit that the procedures prescribed is not complied with. The decree which the plaintiff is claiming to have executed will be a nonest in the light of possession.
10. Learned counsel would further submit that in OS..No.345/1998 suit was decreed, appeal filed against the same in RA No.112/1999 is dismissed for default on one hand and the execution was filed to get the registered sale deed that was completed. Despite the same, possession of the schedule property continued to remain with the defendants. As such, no document or oral evidence or documentary evidence is forthcoming to show that the plaintiff has received possession from the defendants. Thus the defendants contention in chief is that the plaintiff is not in possession of the property.
11. Learned counsel Sri. Shankaranarayana Bhat for the respondent-plaintiff would submit that sale deed was executed, ownership has passed as the defendants did not comply with the terms of the decree passed against them in O.S.NO.345/1998 plaintiff was compelled to secure the possession.
12. In the context and circumstances of the case, this Court framed the following substantial questions of law on 25.8.2010:
1. Whether the courts below committed error in law in granting the decree of injunction, without there being an evidence of delivery of possession in Ex.No.172/1999 arising out of the decree passed for specific performance?
2. Could the judgments and decrees of the courts below sustainable in law, in the absence of iota of evidence to show delivery of possession in Ex.No.172/1999 as required under Order 21 Rule 34 and Order 21 Rule 95 of CPC?
3. Could the decrees of the courts below be justified in law which was preceded with the wrong premises that the execution of sale deed by Court Commissioner tent amounts to delivery of possession also?
13. Before dwelling on the other circumstances of the case, order 21 Rule 34 and order 94 and 95 are necessary to be taken into consideration, which read as under:
Rule 34 Order XXI of Code of Civil Procedure 1908 "Decree for execution of document, or endorsement of negotiable instrument"
(1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment- debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his of objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit, (4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:-
"C.D. Judge of the Court of (or as the case may be), for A. B., in a suit by E.F. against A. B.", and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
(6) (a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorized in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration.
“94. Certificate to purchaser: Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.
95. Delivery of property in occupancy of judgment debtor- Where the immovable property sold is in the occupancy of the judgment=-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.”
14. By reading of the above provisions of law, it is clear that regarding execution of a decree and delivery of possession of the subject matter, the basic question raised by learned counsel for the appellants is that the reading of Order 21 Rule 34 along with 95 suggests that a hell is created between ownership and possession when the possession of the property is not recovered. It is in this connection, this court has to go into the meaning of the term ‘Sale’ as defined under Section 54 of Transfer of Property Act which is as under:
“Sale” is a transfer of ownership in exchange for a price paid or promised or part paid and part promised”.
15. Of course, every decree for possession need not emanate from decree in a suit for specific performance. There are umpteen circumstances wherein the possession is ordered to be delivered.
16. It is also the contention of the learned counsel for the appellants that whatever is provided under Section 22 is pre decreetal stage and does not apply for the post decreetal period. It is in this connection, the law makes some ascertainable legal aspect regard the possession or returning of sale price (what is paid) under the agreement, in a suit for specific performance. The provision of law applicable in this connection are well set out under Section 22 of the Specific Relief Act, which is as under:
“22. Power to grant relief for possession, partition, refund of earnest money, etc.— (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub- section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.
17. Having said that, what are all happened in the suit filed by the plaintiff, after the episode of OS..No.345/1998 are:
Plaintiff – Bhaktachetha Vasudeva filed original suit in O.S.No.264/2003 that came to be decreed in his favour. Thereafter, as the suit was decreed, the defendants filed an appeal in R.A.No.26/2007 which came to be dismissed and it is the defendants turn now to agidate in this appeal.
18. The main points on which the learned counsel Sri. M.R. Rajagopal for appellants focusing is that, he concedes the passing of title from the defendants to the plaintiff by virtue of the decree in O.S.No.345/1998 and the Execution Petition No.172/1999, but submits that the execution is not completed without recovery of possession. It is in this connection, learned counsel would contend that as the execution of the decree has no fruits unless it is accompanied by possession. In support of his contention.
Learned counsel for appellants relied on the decision of the Hon’ble Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi – (2012) 4 Supreme Court Cases 307.
19. Admittedly, the title of the plaintiff over the schedule property is, purchase from the defendants that goes to show even according to the plaintiff, the ownership of the defendants which was purchased by the plaintiff, thus the plaintiff does not deny the title before acquiring of the same from the defendants. Thus, according to the defendants what was transferred was only ownership, but not the possession. Here it is necessary to mention.
Salmond Jurisprudence which is as under:
“Ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons (a) Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents. (b)xxxxxx 20. Further, the incidents of ownership or rights available to an owner are set out therein, where the rights includes indefinite user rights and not only ownership and its incident including that of right to destroy.
21. If the sale deed is taken to be the one mentioning of ownership alone, the same has to be understood with reference to language employed in the deed.
A portion of the sale deed which is marked as Ex.P1 need to be mentioned and it is as under:
“ Now this deed of sale is executed and witnesses as follows:-
(1) xxx xxx xxx (2) The vendors hereby deliver and put the purchaser in possession of the schedule properties”
(3) xxx xxx xxx”
22. It is to be noticed that in a suit for specific performance, unless the possession is delivered at the time of agreement and in case, suit is decreed in favour of plaintiff, two aspects arise regarding execution of registered sale deed and delivery of possession. A cursory glance of Order 21 Rule 95 along with Order 21 Rule 34 CPC would represent aspects including the possession as mentioned above.
23. Now the question is, even if the plaintiff is already in possession of the property, it would be as an agreement holder. Later when the registered sale deed is executed does it require another delivery of possession or could be considered as symbolic. The answer would lie in the material effects caused if possession is not delivered to the decree holder. In this connection, it is to be considered that the plaintiff had filed an application under Order 39 Rule 1 and 2 of CPC wherein he was granted temporary injunction and it was in force both before the trial court in OS No.264/2003 and First Appellate Court in R.A.No.26/2007. Added to it, it is necessary to place on record that by virtue of the sale deed the plaintiff becomes the owner of the schedule property.
24. Now regarding possession, in normal circumstances, possession follows ownership and so long in the commencement of possession is concerned and there must be ‘animus possidendi’ .
25. In the circumstances of the case, the suit schedule property is a vacant land wherein no acts of possession such as carrying of agricultural work, properties, raising of trees or any such aspects wherein the process is required for taking over the possession and delivering the same to the plaintiff who was the decree holder.
26. The contention of the appellants is that, at no point of time, possession was taken from them and they are entitled for protection. This contention will have to be viewed from two angles. Firstly regarding entitlement and secondly, regarding the registered sale deed.
27. The court Commissioner appointed by the trial court executed the registered sale deed and circumstances regarding the contentions establish that possession was delivered it did not require eviction and invention. Added to it, the sale deed was executed by the Court Commissioner on 17.8.2001. On perusal of the said sale deed, it is seen that it is executed for a cash consideration of Rs.30,000/- and possession is directed to be delivered under the said sale deed and the execution petition came to be allowed. It is the decree holder in OS NO.345/1998 filed another suit in OS NO.264/2003 seeking permanent injunction.
28. Learned counsel for appellants Sri. M.R. Rajagopal would submit that in case of ownership the term ‘Possession’ does not presume that ‘owner is in possession’. As pointed out above, the two elements of possessions ‘Corpus possession’s and animus possidendi’ are required to be complied. However, the concept of ‘ownership’ is a bundle of rights, like right to possession, involving user and right to destroy also.
Further, ‘ownership’ is that aspect that comes as a residual whatever the property or wherever the property is held by the residuary right of possession always go to the owner without overreaching the other aspects. In the present case, the sale deed was registered through the Court Commissioner, wherein possession is said to have been delivered and it contains a recital to the said effect.
29. The sale deed is executed by the Court Commissioner on behalf of court in which possession is recited to have been delivered. There are two segments in the process involved.
30. The appellant do not dispute the passing of ownership by virtue of the sale deed executed by the Court Commissioner and their grievance is regarding ‘possession’. In case of properties wherein the acts of possession are made, such as trade, raising structures, residence, wherein identifiable act of possession could be seen, there is a physical bifurcation. But in respect of the vacant land, possession follows the ownership. In this case, the appellants/defendants were prohibited from entering the schedule property by an order of injunction throughout in favour of the plaintiff.
31. In the circumstances, even the conduct of the appellants in claiming to be in possession is neither justifiable nor proper nor their grounds urged are true. Therefore, substantial questions of law raised in this appeal are answered accordingly.
32. Thus I do not find any irregularity or illegality or infirmity in the judgment which calls for interference by this Court on the ground that learned trial Judge and the first appellate Judge have passed sound reasoned orders. Hence the appeal is devoid of merits and accordingly, it is dismissed.
Send back the records to the trial court and the first appellate court concerned.
Sd/- JUDGE tsn*